Letter to the Editor: Title IX Enforcement
Issue   |   Tue, 09/22/2015 - 23:40

Angie Epifano’s brave letter of Oct. 17, 2012 has stimulated much discussion about sexual violence on college campuses. While I feel progress has been made, we have much further to go in promoting the true spirit of Title IX — the promotion of gender equality and the creation of campus environments where all members of the community enjoy equal opportunities.

Last Thursday, Professor Janet Halley, in a public lecture, offered her expertise on how to improve campus sexual misconduct policies based upon her efforts at Harvard Law School. Criticism of current Title IX policies might be understandably unwelcome; some may genuinely believe we are moving in the right direction and others could reasonably worry about backtracking from the hard fought gains paved by activists. Those who are most committed to addressing the issues may well be so overwhelmed with the enormous effort, time and resources devoted to legal compliance that a reassessment of the current system seems impractical. But here and now, at Amherst College, we have an opportunity to evaluate openly where we have come from, what we have done, and most importantly, how we should move forward to more expansively promote equality and respect on campus.

Many valuable questions have been raised in debates at the national level about the current mechanisms of Title IX enforcement. Are there incompatibilities between promoting the wants and needs of complainants and college and university administrations’ efforts to demonstrate compliance? Are the rights of the accused adequately protected? Does Title IX enforcement have a discriminatory impact based on race, ethnicity, immigrant status, sexual identity or any other group or category of persons on campuses? It is also important to ask — is it working? We should evaluate whether the new procedures put in place are effective and fair, and if they produce undesirable consequences. The most vital criterion for that evaluation should be — is Title IX enforcement promoting the growth of a safer and more respectful community?

My own scholarship raises many of these questions in the context of efforts to introduce procedural reforms in the criminal justice system since the 1970s. My research draws attention to the problems that “mandatory” reporting and prosecution policies impose on persons who experience violence. The most significant is the failure of such policies to respect a person’s decision not to seek legal redress; this threat to autonomy is especially harmful when imposed by policies purportedly designed to “protect” them. (See K. Bumiller “In an Abusive State,” Duke University Press, 2008; K. Bumiller “Explaining the Volte-Face: Turning Away from Criminal Law and Returning to the Quest for Gender Equality,” The Oxford Handbook on Gender, Sex, and Crime, Rosemary Gartner and Bill McCarthy, editors, Oxford University Press, 2014 and K. Bumiller “The Nexus of Domestic Violence Reform and Social Science: From Instrument of Social Change to Institutionalized Surveillance,” Annual Review of Law and Social Science, Volume 6, December 2010.)

In light of this research, one aspect of Amherst College’s Title IX implementation strategy that needs reconsideration is the designation of ALL faculty members as mandatory reporters, regardless of their authority to “take action or redress sexual violence.” This college policy, as I understand it, is not the only, or necessarily the best, interpretation of federal law. While recognizing that campuses are put in a very difficult position because of the threat of sanctions, this does not mean that we cannot be both compliant and design our policies to take into account competing concerns.

What do the mandatory provisions require faculty to do? According to our Title IX statements, “ALL Amherst College Staff and Faculty Members are Mandatory Reporters of Information Related to Sexual Misconduct. When Mandatory Reporters become aware of information regarding sexual misconduct, they are required to share what they know with the Title IX Coordinator or any member of the Title IX Team.” Please consider two hypothetical scenarios:

A. Professor Conscientious is sitting in the Frost Cafe and overhears four students at the next table exclaim, “everyone knows that all male students on ‘X’ athletic team of an ‘X’ [racial/ethnic groups] are X [engaging in some forms of sexual misconduct] and the college doesn’t do anything about it.” The students make additional comments that demonstrate discriminatory bias toward [racial/ethnic] groups of students, which cause him to believe that the hearsay reports of sexual misconduct are malicious and unreliable. Professor Conscientious finds the comments deeply disturbing and decides to contact, not the Title IX Team, but the Student Affairs office because he believes the conversation is possibly a violation of our “respect of persons” statement. He considers the Student Affairs responsible for assuring the broad mandate of respect for persons (as part of, but also broader than, the assurance of sexual respect). He is honorably worried about transmitting unreliable hearsay evidence and according to his own professional ethics is concerned that such a report would be irresponsible.

He has told the dean of students everything he knows, and he is confident that if reliable information arises about sexual misconduct, the Student Affairs office will fulfill their Title IX reporting responsibilities.

B. A student visits Professor Conscientious during office hours to explain that his class has been a transformative experience, so much so, that after she reads her assignments she now sees oppression and discrimination everywhere. In fact, she explains that after she read the assignment about stalking, it made her feel like her very frequent and mildly unpleasant encounters with her ex (consensual sexual partner) could be defined as stalking. Within hours of reading the article she called her ex a “stalker” and since then she has noticed he tries very hard to avoid her. Professor Conscientious tells the student she has made him “aware of” “information regarding sexual misconduct” that he is required to report to the Title IX Team. The student informs Professor Conscientious that she is not, and never intended to, make a claim of sexual misconduct. She tells him that the prospect of being “reported” makes her feel angry and powerless and her current distress is far more significant than the harmless behavior of her ex. She expresses fears that the required investigation will further damage her already strained relationships with her ex and their mutual friends. As she leaves his office, she tells Professor Conscientious that this conversation has undermined her desire to speak candidly to a professor about the connections between her personal and intellectual life. Professor Conscientious now feels like he has utterly violated the trust of his student and is concerned about how this violation will affect her learning experience and their relationship throughout the semester.

Does Amherst College policy require Professor Conscientious in both scenarios A and B to report directly to the Title IX Team? From my own reading of the policy and information from my training by the Title IX Team, I believe the answer is yes.

Unfortunately, a potentially problematic policy of mandatory reporting and its strict enforcement distracts us from what these policies have been designed to do: provide a clear channel for redress for those who have experienced harm and have chosen to make a complaint. Ultimately, the faculty’s most important role in promoting the goals of Title IX is not to act as “reporters,” but to expand our efforts to prevent sexual violence. My hope is that we can move away from over reliance upon “enforcement” and toward building a collective consciousness that fosters greater understanding about the harms of discrimination and how it interferes with students’ opportunities to benefit from and enjoy their education. As faculty we should assume responsibilities, above and beyond the Department of Education’s guidelines, to explore how we could be doing more to empower students, to fight all forms of discriminatory treatment in the classroom and to counter violence on campus and in our larger communities. This proactive approach is more in line with the spirit of Title IX and with the “ethic of care” the faculty offers our students in this small and intimate college environment. Hopefully, we can all work together in these efforts.

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