OP ED: To Mitigate Title IX Risks, Designate Campus Ombuds as Confidential Resources
Washington University in St. Louis
Campus sexual violence is a serious problem that has garnered significant attention in recent years. The numbers are grim. On Monday, September 21, 2015, the Association of American Universities released findings from the largest survey conducted to date about college sexual violence. The report revealed that nearly one in four women have been sexually assaulted while in college. Over the years, the United States Department of Education Office of Civil Rights (“OCR”) has issued several “Dear Colleague Letters” to help colleges and universities understand their role in handling sexual violence and assault pursuant to Title IX, the gender-equity law enacted by Congress in 1972. Generally, these letters have served as significant guidance documents to clarify Title IX regulations and university responsibilities. A letter issued on April 4, 2011, however, signaled a shift by the Department. Amid growing concerns about widespread—yet underreported—campus sexual violence, the April 4, 2011 Dear Colleague Letter emphasized OCR’s new focus on addressing sexual misconduct and holding colleges and universities accountable to providing all students with an educational environment free from discrimination.
The April 4, 2011 Dear Colleague Letter required that educational institutions change their policies and practices related to the investigation and resolution of sexual assault and harassment complaints or lose federal funding. Some of the requirements outlined in the Dear Colleague Letter had been addressed before by OCR. Some requirements, however, were new and other requirements expanded prior guidance. In particular, one requirement increased the scope of sexual harassment and assault reporting and broadened the range of institution employees with an obligation to report. OCR explained that a school would be on notice (and potentially be held liable) for sexual harassment if a “responsible employee”—as defined by OCR’s 2001 Revised Sexual Harassment Guidance—knew of the harassment. Of note, the letter (read together with prior guidance) seems to suggest that universities have discretion to identify not only who on campus are considered to be “responsible employees” but also “confidential resources.”
With increased scrutiny by OCR, schools around the United States have struggled with how to interpret what is required of them under Title IX. Part of the struggle pertains to the broadened scope of reporting and how schools are to define who has a duty to report incidents of sexual harassment and assault. For organizational ombuds in higher education institutions, the struggle is palpable. That is, like mental health counselors, ombuds serve as a confidential resource to the campus community. Unlike mental health counselors, though, ombuds have no testimonial privilege—or legal protection from compelled disclosure. OCR has identified mental health counselors, victim assistance staff and pastoral counselors as exempt from reporting but has remained silent about ombuds programs. Consequently, some administrators, concerned about liability, have questioned whether an ombuds who learns about sexual misconduct from a visitor should (or even can), under Title IX, be designated as a confidential campus resource, exempt from reporting.
Designating campus ombuds as a responsible employee rather than as a confidential resource erodes the purpose of such an office. Ombuds have neither the responsibility nor the authority to redress the harm of sexual violence and assault. Instead, ombuds help all constituency groups on campus by confidentially informing those who visit of available resources, explaining relevant policies and procedures, and exploring possible options for next steps and potential resolution. Ombuds are committed to the principles of fairness and equity in process for everyone, including complainants and alleged perpetrators/respondents. Campus communities must be safe for and provide all students with an educational environment free from discrimination. To ensure the safety of and educational opportunities for all, administrators should designate campus ombuds as confidential resources and then clearly articulate this to all constituency groups.
When the White House Task Force to Protect Students from Sexual Assault issued its “2014 Not Alone Report”, it included a call to increase the number of confidential campus resources available to complainants. With the number of law suits now being initiated by respondents against universities for their handling of Title IX investigations, arguably there is a greater need for confidential resources for respondents as well. Unlike other confidential resources, ombuds are uniquely positioned to serve as a confidential resource for all constituency groups on campus. By clearly and consistently communicating the role and limitations of the ombuds—and carefully managing this message campus wide, university counsel and administrators can mitigate the risk that ombuds might pose to the institution and, in turn, ensure that all on campus have a safe place for guidance and support during a time when they may feel the most uncertain about where to go for help.