BY Z. W. TAYLOR AND PATRICIA SOMERS
With the rise of the #metoo movement, sexual harassment and sexual violence in all venues, including educational settings, have received increased scrutiny. Several troubling lawsuits have alleged either that college students were assaulted on campus—and that institutions did not exercise due diligence in Title IX reporting—or that students were falsely accused by a university overreaching its legal authority.
These issues have become so contentious that US Department of Education secretary Betsy DeVos recently introduced legislation that would relax reporting requirements on college campuses, which was met with an uproar from educational researchers and practitioners working on college campuses with marginalized and at-risk student populations. In the state of Texas, the higher education system has been marred by controversy, including the sexual assault and violence scandals at Baylor University, Texas State University, the University of Texas at Austin (UT–Austin), and Texas A&M University. Perhaps best known is the Baylor University scandal involving football team members who sexually assaulted dozens of students.
At UT–Austin, groups of students have confronted professors accused of sexual harassment in their offices, their classrooms, and their homes. The university has not disciplined these professors yet, and it has responded to some of the allegations with arguments about free speech. Texas State University’s controversy concerns mandatory reporting and Jean Cleary Act reporting guidelines, as Texas State may face a substantial fine for Title IX violations from the US Department of Education, which alleges that sexual assault and sexual violence related crimes were grossly underreported in 2016 and 2017. Texas A&M University made national headlines when two former students took to social media to express their disappointment after A&M officials handed out only minor penalties for major Title IX infractions. Ultimately, this situation led to A&M hiring a law firm to make sweeping changes on campus regarding Title IX reporting and disciplinary guidelines.
Subsequently the Texas legislature has recently enacted three sweeping bills directly aimed at curbing sexual assault and violence on public and private university campuses, holding institutions and mandatory reporters accountable, and documenting student conduct violations on official transcripts.
A trio of bills—House Bill 1735 (HB 1735), Senate Bill 212 (SB 212), and House Bill 449 (HB 449)—was passed in 2019 and enacted in September 2019 and will trigger state penalties starting on January 1, 2020. The legislation gave all Texas colleges and universities a compliance window from September 1, 2019, to January 1, 2020, during which institutions could train campus stakeholders and spread awareness before penalties are levied, including mandatory employee termination for failing to make a Title IX report.
The broadest bill, SB 212, redefines mandatory reporting requirements on all college campuses, defining all institutional employees as “responsible employees,” meaning that unless these responsible employees immediately report Title IX violations or suspicions of violations, the employee is immediately subject to termination and a Class A or B misdemeanor under state law, with no mention of the required due process for termination of state employees. The implications of this legislation are profound because faculty, staff, and student employees will now be required to be mandatory reporters as “responsible employees” and must file a Title IX report if any of these stakeholders have any suspicion or knowledge of a Title IX violation of a romantic or sexual nature. Because only non-student employees face termination penalties for failing to report, graduate and teaching assistants are exempt from the mandate.
In an effort to educate the campus community, UT–Austin’s Title IX office recently held an optional Title IX reporting workshop, directly addressing the implications of SB 212 on the mandatory reporting requirements of responsible employees. During the workshop, a representative from the Title IX office explained that hearsay is reportable under SB 212, and the Title IX office prefers that all incidents be reported through an online form instead of in person or by phone or email. The office’s rationale was that there are so many Title IX reports that investigating all reports and providing in-person services for all reporters is impossible, given the office’s inadequate staffing. One of the best endowed universities in the country—UT–System shares a $31 billion endowment—may still struggle with intake and investigation of Title IX reports, bringing into question how under-resourced institutions in Texas can maintain compliance with SB 212 and other Title IX policies.
Complicating matters, SB 212 and other Texas legislation conflicts with federal legislation and policies proposed by Secretary DeVos, who asserted that Title IX offices may not need to investigate violations that occur off-campus or violations that did not occur within an institution’s programs or activities. Inversely, SB 212 requires responsible employees to report all Title IX violations no matter where or when they occur, including off-campus settings and potentially years or decades in the past. This means that university students have more protections and safeguards from sexual assault and sexual violence than K–12 students, who arguably need at least equal, if not greater, protection than their collegiate counterparts.
Ultimately, future Title IX reporting at the state level may challenge federal mandates and jurisdiction, as state laws such as Texas’s SB 212 may directly conflict with federal policies outlined by the US Department of Education, rendering Title IX reporting even more confusing than it has been.
Guest blogger Z. W. Taylor is a PhD candidate in higher education leadership and guest blogger Patricia Somers is an associate professor of education, both at the University of Texas at Austin. The views expressed here are those of the authors, who do not represent the University of Texas at Austin or the University of Texas system.
It has been my long contention that ALL reports of sexual assault on or off campus that are actual CRIMES should be brought to the attention of local law enforcement — NOT given to campus police or, worse, university administrators. Shouldn’t ALL violations of the criminal code be referred to the police and law courts?
The reason that colleges probably want to handle these matters in house is so that the actual crime rate (sexual offenses, thefts, assaults, etc.) will remain relatively secret from parents and prospective applicants.
Absolutely. That is exactly what it is about. Crimes are matters for civil authorities.
Law enforcement investigation of alleged crimes and campus investigation of alleged violations of college and university policies are not mutually exclusive options: both can and should be explored where appropriate. In-house investigations of alleged violations of campus policies are not conducted to maintain secrecy — the Clery Act requires that such allegations and investigations be made public — but in recognition of the fact that law enforcement and the judicial system often take years to pursue such cases to a conclusion, when they are pursued at all. Moreover, cases of sexual harassment that do not rise to the level of a crime may still be violations of campus policies. Colleges and universities have an interest in insuring the safety of students, which may entail pursuing disciplinary action against other students apart from or in addition to any possible law enforcement or judicial actions.
Like many things in life, my reply to Barbara Piper is “Yes, but …” She is correct that campus authorities CAN refer crimes to local authorities, BUT they rarely do so.
The fact that legal cases take a long time is also true for burglary, grand theft auto, and even murder.
” She is correct that campus authorities CAN refer crimes to local authorities, BUT they rarely do so.”
My point was that victims may report crimes to local legal authorities as well as to campus authorities. I was not referring to what campus authorities do or should do.
You seem to have missed the point about the length of time it takes to move a criminal case through the system. If a student commits murder, robbery or burglary, a campus may investigate the student for violations of campus codes of conduct or policy, and can find that student credibly in violation long before a court can. That student can then be dismissed or otherwise sanctioned by the college or university — the point is that campus authorities have an interest in taking action against any member of the campus community who violates campus policies, etc, and can usually do so before the courts, though presumably the legal and judicial systems will also act.
This is a terrible and completely indefensible law. Mandatory punishments are wrong. Mandatory firings are even worse. Mandatory firings for failing to report an incident are almost always going to be an injustice. How crazy is this law? Committing sexual harassment is not a mandatory firing. But following the wishes of a student who tells you about a possible incident she wants to keep confidential for a short period of time? That’s an automatic firing. Under the law, if the student newspaper reports a story about campus harassment, any employee who reads the artlcle is obligated to report it to the Title IX office or they are required to be fired. Even if the article notes that the incident has already been reported to the Title IX office, this is no excuse under the law. Every incident must be re-reported by anyone who hears about it or automatic dismissal is the mandatory punishment. Even an archivist reading records from the ancient past is obligated under the law to report every case of sexual harassment they encounter against long-dead students from a century ago.
The poet Auden and the composer Leonard Bernstein said we lived in the “Age of Anxiety.” That was decades go. probably under the threat of nuclear annihilation.
In today’s academy, it seems to be the “Age of Absurdity.” Doesn’t anyone READ or REALIZE the implications of such stupid policies?