The Senate webpage with the policy proposal and amendments is here. The Senate blog is here – many interesting comments.
Some History of the Responsible Employee policy, from the GCO:
Prior to February 2016, UO Policy, set forth in Oregon Administrative Rule 571.003 governing Grievances, required all UO employees to report instances of unlawful discrimination to the Affirmative Action and Equal Opportunity Office or their supervisor. University-provided sexual harassment training, as well as annual announcements from the University President reiterated that all University employees are required to report to the appropriate office any information received that established a potential sexual harassment or other instance of prohibited discrimination. Under those long-standing policies, reports of any type of unlawful discrimination, including sexual harassment, were to be made to AAEO or the employee’s supervisor, regardless who the alleged victim of the discrimination was. That pre-existing policy did not adequately clarify which offices on campus qualified as “confidential resources” where student survivors of sexual harassment could turn to make reports in a manner that promised the reporter confidentiality.
At the same time, the 571.003 grievance policy, in a separate section, purported to give any officer of the university who was called upon to participate in the informal resolution of a complaint of prohibited discrimination the authority to maintain confidentiality of reports of sexual misconduct or prohibited discrimination, unless that university officer independently determined that the report posed a health or safety threat to the individual. This confusion, combined with new guidance from the White House and the Department of Education’s Office for Civil Rights, and an understanding that reports of sexual misconduct in which students are the victims should be reported to university officials with the ability to respond swiftly and appropriately to the needs of those victims, fueled an understanding by the University Senate’s Task Force to Address Sexual Violence and Survivor Support that the University needed to revisit and clarify policies regarding reporting of information of sexual misconduct. The Task force determined:
“We understand that the current required (mandatory) reporting policy is based on UO Legal Counsel’s interpretation of OAR 003 0025, Subsection 2A. Reporting of sexual violence is essential to understanding the problems on our campus, making decisions about how to allocate resources, and complying with legal obligations. However, we agree with the White House’s “Not Alone” report that clearly identifying confidential personnel on campus and communicating effectively and straightforwardly with faculty and students about what required (mandatory) reporting means, why it is important, and how reporting works is vital to our efforts. One first responder at UO suggested that there should be “greater access to confidential resources and a greater latitude to disclose only what a survivor wishes to disclose in a formal report,” a desire that reflects the White House’s recommendation about the need for degrees of confidentiality. As “Not Alone” puts it, individuals who work or volunteer in on-campus sexual assault centers, victim advocacy offices, women’s centers, or health centers, including front desk staff and students who provide assistance to students who experience sexual violence, should provide aggregate data, but should not be required to report, without the student’s consent, incidents of sexual assault to the school in a way that identifies the student. Other universities are taking different approaches to required (mandatory) reporting, approaches more in keeping with White House recommendations. In order to comply with new federal regulations and White House Recommendations for best practices, the Senate will immediately review the outdated OAR.
In February 2016, anticipating the creation of a policy clarifying employee reporting obligations and specifying the campus’ confidential resources for survivors of sexual misconduct, the University President issued an emergency policy, revising OAR 571.003, making clear that university employees, other than those specifically designated as “confidential,” are expected to report to the AAEO any instance of unlawful discrimination and to report to either the Title IX Coordinator or the Office of Sexual Violence Support Services any information received concerning sexual harassment in which a university student is the alleged victim. The policy revision attempted to demonstrate clearly which campus resources (victim’s advocates, ombuds, student survivor legal services, health and counseling centers) remained confidential resources available to survivors.
The Committee on Sexual and Gender-Based Violence thereafter took up the task of drafting a permanent policy responsive to the Task Force’s recommendation, seeking to clarify which resources on the UO campus would remain “confidential” and responding to guidance from the Office for Civil Rights and the White House requiring that universities designate which employees were perceived to be in a position to respond to reports of sexual misconduct, such that notice to those employees would be deemed notice to the university of the misconduct. In drafting the policy, the CSGBV received input from students, faculty members and employees. The CSGBV also considered guidance issued by the Office For Civil Rights in 2014, which states that a: “responsible employee includes any employee: who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.”
The result of the CSGBV is the Responsible Employee policy currently under consideration.
John Bonine (Law) makes the case for voting against the mandatory reporting policy:
I am out of the country, so cannot participate in the Senate meeting. If I were present, I would have to vote to delay any permanent policy until survivors, students, and other stakeholders could be consulted and participate. Lacking a formal delay, I would have to vote “no,” which would send it back for broader discussions.
I share some thoughts on why.
1. First, contrary to some statements, the CSGBV committee did not unanimously support the proposed policy in front of us (mandatory disclosure of private sexual assault information to the administration). I and at least one other member strongly objected in various emails. Only 6 out of about 12 or 15 members voted “yes” during the sudden, 6-hour window. I was overseas and did not see the email voting until the period had closed. But my position was clear and I would have preferred that the committee would not have been represented as “unanimous.”
2. There is not just one legal view of whether involuntary reporting of student trauma to administration authorities is legally required. I have carefully analyzed the law and federal guidance and come to the opposite conclusion, as have several legal experts at the national level.
3. Even if Title IX did require involuntary reporting to authorities of student sexual trauma, against a victim’s wishes, that would not make all the other elements of the policy legally required. Indeed, the constantly shifting amendments reveal that this is an area for debate and rational discussion and policy-making.
4. In my view, the Senate has a crucial role to play at UO – to reflect the views of constituencies and to apply our own analytical rigor – not to approve something just because some committee members did. Indeed, the latest amendments do not have the imprimatur of the committee. If we do not understand each element of this dramatic policy, we should formally delay or vote no.
5. There has been no discussion with the very adult students whose autonomy will be violated. No town halls. No debates in dorms. We are a better university than one that treats these future leaders as children, whose privacy we should invade without discussion.
6. Something that concerns me deeply is that perpetrators, upon being notified by the university that they are suspected, are now hiring lawyers and investigators who then contact parents, grandparents, and friends with both questions and insinuations about a victim’s sexual history, sexual orientation, use of alcohol, attendance at wild parties, and other personal things. Reporting without permission enables that. A survivor of sexual assault should be able to weigh risks and make decisions, rather than having persons s/he doesn’t even know make those choices for her/him. (I respect some who would make those decisions, but who might make them next year or the year after?) I would leave such a decision, fraught with risks, in the hands of the already victimized.
7. Whatever the Senate does, the administration may adopt the policy regardless. But that is not a reason to vote yes.
If a person votes yes, that constitutes their formal commitment to take away the autonomy of a student who might later come to them. They cannot later say that they were required to do so by policy. They must look a victim of assault, and indeed other students, in the eye and say that they personally voted to take away that autonomy, with whatever additional trauma that action may cause. The Senate simply does not have to do this – and I am unaware of any other university senate in this country that has done so.
Given all these concerns about both process and substance, as an independent-thinking Senator I would have to vote no on the present policy.
John E. Bonine
B.B. Kliks Professor of Law
5/17/2016: The meeting will first deal with two uncontroversial policies on exam timing and course overlap. Then we will deal with Mandatory Reporting or, if you prefer, Responsible Employees. This post will be updated erratically below.
The Senate webpage with the policy proposal and amendments is here. The Senate blog is here – many interesting comments. The current policy is here. It is admirably transparent:
(8) Reporting Requirements: The Director and Title IX Coordinator, as appropriate, shall: (a) On at least an annual basis, issue a statistical report to the President, the University of Oregon News Bureau, and the Oregon Daily Emerald of the number and kinds of discrimination and sexual harassment complaints received and how they were resolved. No names of individual’s involved or other identifying information may be released in this report. Data relating to allegations of sexual harassment shall be reported separately from other forms of prohibited discrimination. Further break-downs by category may be used if confidentiality can be preserved and if doing so will make the figures more meaningful to the public;
I asked GC Kevin Reed for these reports. He says that he is unaware of any such reports and that it is fully possible that there are none. Another of the many failures of UO’s AAEO office under Director Penny Daugherty. There have been two separate reviews of the AAEO office in the past year, but these are confidential and the GCO will not disclose them.
The policy has been revised many times in the past few years. The 2012 version is here. It requires reporting, but allows for anonymity of sorts for the reporter and apparently also the victim, and it allows for a faculty member to act as an intermediary between the victim and the University Administration:
(2) University Employees’ Responsibilities in Dealing with Allegations of Prohibited Discrimination or Sexual Harassment: The University has the responsibility to prevent prohibited discrimination from occurring in its work-places and its academic, research, public, and student service programs:
(a) University employees with credible evidence that any form of prohibited discrimination is occurring have the responsibility to inform their supervisors or the Office of Affirmative Action. Credible evidence is evidence of the kind that prudent people would rely on in making important personal or business decisions;
(b) Staff in the Office of Affirmative Action shall provide information about available complaint processes, services for complainants, and assistance with resolving complaints to any University employee who makes a report of alleged discriminatory behavior so that these employees may pass on this advice to those involved who may need this information;
(c) In making such reports, University employees may retain their anonymity;
(d) Staff in the Office of Affirmative Action will advise potential complainants of the options available to them, including applicable internal formal and informal complaint and resolution processes, as well as the possibility of filing with an external agency. Potential complainants shall receive the addresses and phone numbers of external governmental agencies with authority to deal with their complaints, as well as information about any time limitations on access to outside agencies’ processes.
(3) Discrimination Grievance Counselor: As required by OAR 580-015-0090, the University has appointed a discrimination grievance counselor who is the Director of the Office of Affirmative Action and Equal Opportunity (hereinafter referred to in this rule as the Director). The Director shall assist students and others in formulating and following up complaints of alleged discrimination.
(4) Formal Complaint Processes:
(a) All members of the University community considering filing a formal complaint alleging prohibited discrimination or sexual harassment are encouraged to contact the Office of Affirmative Action for information and advice. Potential complainants may remain anonymous. Affirmative Action staff will work for resolution through informal processes if that is what the complainant desires, or will assist in making a formal complaint and setting it into the formal complaint process applicable to the complainant; …
FWIW, former UO Pres Mike Gottfredson’s “Independent” Presidential Review Commission came out against the sort of broad-based mandatory reporting in this new proposed policy.