Defense for Title IX Mandatory Reporters

Mandatory reporting is a policy requirement in educational settings to protect victims of certain, often sex-related, crimes. The category of protected victims is broad and includes students, visitors, faculty, or other school employees. According to policy mandates, mandatory reporters must report the bad behavior even when the victims don't want the misconduct to be reported.

The federal law that gives rise to mandatory reporting serves various purposes but does not always give schools a clear definition of what, or who, a mandatory reporter is. As a result, many schools cast a wide net. For example, under UCLA’s policies, mandatory reporters are described as athletic coaches and:

“an employee or administrator whose duties bring the administrator or employee into contact with children on a regular basis, or who supervises those whose duties bring the administrator or employee into contact with children on a regular basis, as to child abuse or neglect occurring on that institution's premises or at an official activity of, or program conducted by, the institution.”

Understanding who is a mandatory reporter can at times feel ambiguous, and the law under which reporting is triggered can dictate whether or not you violated your mandatory reporting duties.

Who is a Mandatory Reporter?

A mandatory reporter is someone obligated by their university's policies to report abuses and crimes that fall within federal parameters. Three federal laws mandate reporting of violative behavior that occurs in academia in certain situations. These three federal laws are:

  • The Clery Act
  • Title VII
  • Title IX

While the federal laws do not in themselves create mandatory reporters, universities have defined the role as a way to protect themselves from liability. Each of the three federal laws imposes a requirement on the university to be aware of, and to stop, wrongdoing. Accordingly, the universities pass this obligation on to their employees via mandatory reporting requirements.

Most universities place a general reporting requirement on employees, and generally, anyone aware of misconduct must report it. Under the Clery Act, reporting is done for data collection purposes and can be made anonymously. There are consequences when mandatory reporters fail to report, but an experienced mandatory reporter defense attorney will help you understand the nuance in your obligations. For instance, an obligation to report under Title VII is not as broad as under Title IX.

Mandatory Reporting Under the Clery Act

The Clery Act is a law designed to foster transparency in campus crime statistics and policies. To comply with the Clery Act, colleges and universities must provide an annual report that sets forth crime data for the prior three years.

The crimes that require reporting under the Clery Act include, but are not limited to:

  • Criminal homicide
  • Sexual misconduct
  • Robbery
  • Aggravated assault
  • Burglary
  • Vehicle theft
  • Arson
  • Theft, assault, intimidation, and vandalism when motivated by discrimination

The Clery Act requires “campus security authorities” to report misconduct. Campus security authorities are those with a significant responsibility in student life. This can include faculty, athletic coaches, department administrators, and even other students if resident assistants live in the dorms.

Reporting under the Clery Act can be anonymous. However, it's important to remember that if the mandatory reporting is triggered under this act, it's likely that the incident will need to be reported under Title VII or Title IX, which is not anonymous and further triggers an investigation.

Mandatory Reporting Under Title VII

Title VII is part of the Civil Rights Act of 1964, and specifically, “Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.” Violations of Title VII are considered sexual harassment and include:

  • “Unwelcome sexual advances”
  • “Requests for sexual favors”
  • “Other verbal or physical harassment of a sexual nature”

While we often think of mandatory reporting in terms of student victims of misconduct, Title VII applies to victims employed by the university who suffer from the harassment of coworkers or employers.

Those required to report acts of sexual harassment in a college or university workplace will vary from place to place. Often, those in a supervisory role will be required to report. When in doubt, it's wise to report violations of Title VII to the appropriate department. At UCLA, for example, the new Civil Rights Office will handle reports of sexual misconduct that violate Title VII.

Mandatory Reporting Under Title IX

Title IX is part of the Education Amendments of 1972, and the law is enforced by the U.S. Department of Education's Office of Civil Rights. Like Title VII, Title IX is also concerned with sexual misconduct. Misconduct that triggers mandatory reporting under Title IX include acts involving discrimination on the basis of sex. The law specifically provides that:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The statute's language has been interpreted to include sexual harassment, rape, and discriminatory behavior and abuses.

What differentiates Title IX from Title VII is that the victims of Title IX can also include individuals who are not victimized by someone they work with or for. For example, an instructor who discriminates or harasses a student is acting in violation of Title IX. This example wouldn't necessarily violate Title VII unless the student was employed as the instructor's assistant.

Reporting mandates under Title IX are implied from the law. The statute requires that schools promptly and effectively remedy the misconduct. Since a school cannot comply unless they know about the bad behavior, they need to mandate the reporting of Title IX violations.

Penalties for Violating Title IX Mandatory Reporting

If a school fails to comply with Title IX, the penalties can be catastrophic. Essentially, the school is at risk of losing the federal funding it receives. The funds at risk of being withdrawn include federal student loan funding and grants for various projects, to name just a few. In 2018, for example, a school district in Chicago lost out on $4 million in federal grant money after the U.S. Department of Education determined that the district “hasn't demonstrated t