When does a university “know” about harassment or sexual misconduct?

But over in the US, universities (at least any university receiving federal aid) have been implementing formal regulation in the area for well over a decade.

And one of the ongoing questions surrounds knowledge. Once a university, or one of its staff know that something is happening, should it act – regardless of whether the alleged victim wants it to – to protect others?

Title IX is a federal civil rights law that was enacted as part (Title IX) of the Education Amendments of 1972 that prohibits sex-based discrimination.

Back in 2011, the Education Department under former President Barack Obama issued a “Dear Colleague” letter – interpreting Title X1 such that educational institutions have an obligation to protect students from sexual harassment and sexual violence.

The guidance stated that even a single episode of sexual misconduct could constitute a hostile educational environment – and trigger colleges’ Title IX obligations.

It ushered in significant national focus on campus sexual violence – but picked up criticism from “due process: activists who argued that it pressured colleges to hold accused students responsible for sexual misconduct.

Now fresh changes to regulation mean that it’s facing criticism from those who campaigned for it in the first place.

In 2014 a Q&A document from the Education Department clarified procedural requirements, and in 2016, the Education and Justice departments issued guidance mandating that institutions respect transgender students’ pronouns.

Then in February 2017 under Trump, Betsy DeVos was confirmed as Education Secretary, and the Education Department rescinded the transgender student protections and withdrew the Obama administration, issuing interim guidance allowing flexibility on the evidentiary standard used in evaluating cases and permitting informal resolutions such as mediation.

The final version also mandated the holding of a live hearing to adjudicate sexual misconduct cases during which accused students and their accusers had to be allowed to cross-examine each other through an adviser.

When Biden took office, his Education Secretary Miguel Cardona proposed expanding the range of reports that colleges would be required to look into and would no longer force them to set up hearings to adjudicate those cases.

Now – after a tortuously long set of consultations involving legal challenges over gender identity – the final Title X1 regulations include protections for LGBTQ+ students and teachers, as well as for pregnant students and teachers (something, oddly, missing from OfS’ version – at least explicitly).

Given the inclusion of trans rights, some state leaders have instructed colleges not to comply – and 26 Republican attorneys general have secured seven temporary injunctions preventing enforcement, which was supposed to kick off on August 1st. House Republicans argue that the rule exceeds the education department’s authority and undermines protections for cis women and girls.

But another provision is generating controversy from another political direction.

When the draft dropped in 2022, it included a reporting mandate for nearly all university employees. It would have required all academic and professional services staff to tell the university’s Title IX office if they learned about any allegations of sex discrimination, harassment, or retaliation.

Mandatory reporting makes logical sense. Advocates argue that it prevents “open secrets” and enables managers to act.

But a group of academics argue the loss of control and autonomy can stop students from disclosing to trusted staff for support – fearing unwanted inquiries from investigators, and resulting in a “chilling effect” on disclosure to start with.

That’s interesting because under Trump, “mandatory supporting” policies proliferated instead – requiring staff members to provide students who told them about possible sexual misconduct with resources and information about reporting, but leaving the choice to report up to them.

A good example of opposition to mandatory reporting came from the University of Oregon:

There is concern that if the university was forced to abandon its reporting policy, survivors may be less likely to come forward, thereby leaving the university with notice of alleged sexual harassment but an inability to undertake a meaningful investigation.

In the final rule, the department keeps the mandate but adds a clarification – some employees can be allowed to only give information about reporting, but only those without responsibility for administrative leadership, teaching, or advising. That doesn’t leave many others.

That now leaves colleges committed to opposing that aspect of the new regs now advising on loopholes – telling students that even if their disclosure is reported against their wishes, they don’t have to cooperate with an investigation.

In some ways this is exactly the sort of debate that we ought to be having by now. There’s nothing in place in NI, Scotland and Wales, and in England formal regulation is only just getting started. On the above issues, it really does need to catch up.