The past several years have seen many changes to how Title IX regulations are implemented. Those changes are natural when administrations change, as each administration brings a different perspective on how to interpret the legislation. Recently, though, the journal Insider Higher Ed reported on the Education Department's proposed expansion of Title IX mandatory reporting in a way that surprised and disappointed many of the current administration's supporters. Those who are criticizing the proposed new mandatory reporting rule say that it will hurt, not help, victims of Title IX sexual assault and harassment.

Mandated Reporting When Not Desired

The article reports that the DOE “heard from stakeholders that the current 'actual knowledge' standard is too narrow and insufficient for colleges and universities to meet their obligations under Title IX.” The current actual knowledge standard doesn't require all who learn about the allegations, like instructors or advisors from whom the victim seeks support, to report the allegations.

But the proposed new Department of Education rule would make most college employees mandatory reporters whenever they learn of alleged Title IX sexual misconduct, even when the victim just wanted a little support. Under the proposed rule, any school employee with the authority to enact corrective measures, including instructors, advisors, and administrators, would have to notify the Title IX coordinator whenever they learned of alleged misconduct. The new rule would mandate reporting even when the victim had just sought help and wanted confidentiality.

Not surprisingly, then, when the Department of Education closed the public comment period for the new rule in early September, the majority of the 240,000+ comments were against the proposed expansion. Many of the comments regarded the mandatory reporting changes as “ill-advised” and “complicated." The new rule would allow schools to designate some "confidential employees," like religious counselors and healthcare providers, whose privileged communications with the victim would exempt them from mandatory reporting. But critics still hold the proposed new rule to be grossly overbroad.

Why Expanding Mandatory Reporters Is a Bad Idea

According to critics quoted in the journal article, the decision to expand reporting requirements to include employees who've heard about an alleged violation, but haven't heard a complaint directly from the student, introduces significant challenges and concerns. Mandatory reporting based on hearsay could result in more false accusations against alleged violators. Sexual harassment or assault allegations can ruin a student's reputation and even their college career. By broadening the mandatory reporter base, the DOE would potentially be rolling back some of the protections for alleged offenders that the Trump Administration's Department of Education promulgated under Secretary DeVos.

But the fact that the proposed rule would require school employees to report an alleged Title IX violation, even when the putative victim wants confidentiality and only seeks other support, is the main criticism that even Title IX advocates level at the proposed rule. The proposed rule could discourage victims not only from reporting but from even seeking resources, support, and services. The fact so many of the public comments speak to the problems with this expansion should give the Department of Education pause in how they pursue and whether they implement the proposed changes.

A National Title IX Attorney Advisor Can Make a Difference in Your Case

An attorney advisor can help you navigate allegations of college sexual misconduct or Title IX violations. Sometimes, students wait until after their school decides their Title IX matter. Some students speak with an attorney advisor only after the school announces its finding and sanction. Waiting for results before getting the help you need is a poor approach. It can result in temporary sanctions and more while your appeal is underway.

National Title IX attorney advisor Joseph D. Lento and the Lento Law Firm have worked with thousands of students nationwide and helped them reach the best possible outcome when facing Title IX violations or sexual harassment, assault, or other misconduct allegations. Call them today at 888.535.3686 or contact them online for more information.