Brian Pappas is an Assistant Professor in the School of Public Service at Boise State University, where he also directs the Conflict Management Program. His research examines the tension between formal and informal dispute systems, with a focus on university sexual misconduct, mediation, and jail inmates trained as peer mediators. Prior to joining Boise State University, Brian was Clinical Professor of Law at Michigan State University, where he served as the Law College’s Title IX Coordinator.
There is an epidemic of peer sexual violence occurring on campuses across the nation. A 2015 study found one-third of undergraduate female seniors report nonconsensual sexual contact at least once during college. Moreover, evidence indicates sexual misconduct is widely underreported, with a study of twenty-seven universities finding 28% or less of even the most serious incidents are reported. In order to combat a culture of non-reporting and make sure no incident goes unattended, universities like Boise State impose mandatory reporting requirements on all faculty, staff, and employees so the complaints can be investigated, the perpetrators punished, and abuses deterred. Today, universities face a dilemma in determining how to create fair, consistent, and reliable processes that respect the rights of both alleged perpetrators and survivors, while at the same time encouraging people to bring complaints forward.
TITLE IX AND THE CONFIDENTIALITY CHALLENGE
Title IX of the Educational Amendments of 1972 promotes equity, prohibits sexual misconduct and hostile environments, and directs universities to remedy gender-based forms of discrimination. The university manager responsible for Title IX compliance is known as a Title IX Coordinator. Title IX Coordinators or their staff have multiple responsibilities, including conducting investigations, determining Title IX violations, notifying parties of decisions, coordinating appeals, providing training, and maintaining records. With the responsibility to address known problems, Title IX Coordinators cannot guarantee confidentiality and must prioritize compliance over confidentiality.
Confidentiality is a challenge and an opportunity for Title IX Coordinators. On one hand, providing confidentiality can be used to encourage reporting by building trust, providing control to reporters, and ensuring privacy for survivors and alleged perpetrators. A lack of confidentiality presents significant challenges because it may prevent people from reporting sexual misconduct.
A 2014 White House Task Force Report observed survivors are especially concerned about maintaining their confidentiality and are hesitant to come forward with allegations. Often they do not want to go through an arduous investigation, hearing, and appeal process. Using formal processes and reaching official decisions sets a norm that sexual misconduct will not be tolerated. In contrast, settlements reached informally provide privacy and control for individuals, but are also much more efficient for Title IX Coordinators handling high numbers of complaints. Further, settlement can be used to avoid potential liability or reputational damage to the university. Navigating the tension between university and individuals’ interests while simultaneously complying with Title IX places Coordinators in difficult situations.
In my research interviewing Title IX Coordinators and Ombuds, published in the Denver and Tulsa Law Reviews, I observed that while many Coordinators favor compliance over confidentiality, just as many do not. Title IX Coordinators do not comply with the rules when they help survivors avoid a harmful formal process. One Coordinator poignantly describes frustration with the formal system:
[T]he . . . conduct hearing is very formal [and] the victim is expected to mount her own defense. She must call her own witnesses. She must question her own witnesses. She must answer questions from the panel. . . . [T]here’s not a young woman that’s been through this process that has not said to me “the process was worse [than what happened to me].” It is re-victimization. The one that went [to the next step] said “I don’t want money, I just don’t want another girl to have to go through this.”
As a result many Title IX Coordinators provide complainants with control over whether the Title IX Coordinator will investigate—a clear departure from their compliance role. For example, a Coordinator noted “the goal of the meeting is to give [visitors] their options and to hear if they made a decision about a complaint. What do they want to have happen?”
Informal options also satisfy university preferences for avoiding publicity and liability:
We had a change of president here who didn’t like all the investigative reports we were turning out because whenever we had findings of discrimination or sexual harassment, those reports, they always become attachment A to the lawsuit against the institution. Now I’ve been given the green light to sort of identify cases that maybe can reach an informal resolution without having to go through a full investigation.
In navigating these tensions, Title IX Coordinators are often inconsistent in their complaint handling, which exacerbates underreporting. My research found multiple problems, including confidentiality violations, lengthy time periods to resolve complaints, officials with little understanding of the law or inadequate training on proper procedures, and perceptions that important people are treated differently.
The culture of non-reporting and the tension between individual, university, and compliance interests results in a compliance regime that is severely limited in its effectiveness. Universities cannot remedy issues of misconduct unless they know about them, and so they must implement processes designed to encourage individuals to make complaints. A 2014 White House Task Force Report recommends giving survivors of sexual misconduct more control over the process by ensuring a place to go for confidential advice and support. While many survivors want the school to respond quickly, others are not so sure and want someone to talk to before they lose control of what happens next. Already hesitant to come forward, inconsistent complaint handling and unclear confidentiality practices further deter survivors and results in a system unable to identify, rectify, and deter issues of sexual misconduct.
OMBUDS’ CONFIDENTIALITY ENCOURAGES REPORTING
Given the ineffectiveness of the compliance regime, all universities require an impartial, independent, and confidential resource to help discover complaints while providing individuals with clear guidance on options. This resource exists in the form of the university Ombuds. A university or “organizational” Ombuds is a confidential resource for anyone who has a complaint or concern regarding the university. Ombuds are intended to help defuse situations before they become larger problems by helping individuals think through options, clarify goals, and improve communication. Ombuds do not tell people what to do. Most importantly, Ombuds provide confidentiality to individuals and do not put the university on “notice” for purposes of creating a legal responsibility to act. Ombuds do not duplicate any services and have no authority to formally resolve a dispute, conduct a formal investigation, impose a sanction, or change a policy.
The main professional association for university Ombuds is the International Ombuds Association (IOA), whose Standards of Practice require Ombuds to maintain the confidentiality of visitors’ identities and any information that could lead to their identification. Unlike Title IX Coordinators, Ombuds give priority to confidentiality over compliance. They promise absolute confidentiality and do not make reports about specific individuals. Ombuds only make reports about trends, thus ensuring the complete anonymity of their visitors. Further, the Ombuds only takes action with the individual’s express permission. Describing confidentiality as a privilege, the IOA Standards provide an exception where Ombuds perceive imminent risk of serious harm.
Ombuds, by providing confidentiality, encourage reporting. Rowe, Wilcox, and Gadlin state it best, “If the dilemmas are managed badly by providing too few options (and zero tolerance may offer no options), fewer people will come forward.” Providing confidentiality to visitors is necessary in order to allow students to feel comfortable making a complaint or asking for help. Ombuds are ideal for individuals who do not know where to go, need help understanding the maze of options, want complete confidentiality, and want to retain their control over the next steps.
Title IX Coordinators can strengthen their compliance work with a well-designed Ombuds office. Title IX Coordinators often provide too much flexibility, and Ombuds can make sure the university offers effective formal and informal dispute options.
Ombuds can help the university even where students are not willing to make a formal complaint, by providing feedback regarding numbers of visitors, the types of issues handled, and recommendations on how to address systemic problems. By presenting the data that help to identify trends, Ombuds can persuade managers provide enhanced training, survey departments to identify problems, or to employ procedural changes. Ombuds can thus provide an early warning that can help to avoid serious problems that will result in liability to the university. An Ombuds described the benefits of informal processes:
I’ve said this to our [formal offices] . . . “[t]here are ticking time bombs out there that you’re never going to find out about because people are afraid to come forward because they can’t go someplace and just talk about it and feel safe about having that conversation.”
Ombuds must maintain confidentiality and may not report about someone’s conduct directly unless they have explicit permission. Otherwise they must wait until the visitor is no longer on the campus or another comes forward. Here an Ombuds described the value of maintaining confidentiality:
You can’t have it both ways. If you’re not going to be an agent of notice, and you’re going to participate in formal [processes] . . . you start crossing those other lines. You do not have the right to claim no notice and you are not really Ombudsing. . . . Many of the people who come to me to talk about sexual harassment . . . come to me first and foremost for a reality check….They want a safe place to come and discuss first … and then a safe and trusted place to come to say, “ok, if I wanted to do something about it, what are the kinds of things I might consider doing?” Without obligating themselves to do any of them. And those are two functions that we as Ombudsmen can perform only because we are not agents of notice and we are confidential.
NON-CONFORMING OMBUDS MUST BE MANDATORY REPORTERS
Ombuds following the IOA Standards are deeply committed to the principle of confidentiality. My research found, however, Ombuds frequently do not practice to the IOA Standards. Ombuds noted breaking not only the confidentiality standard, but also those relating to independence and impartiality:
But I have to be careful because people didn’t give me express permission to go forward . . . . [So] if I [go forward it is] because I weighed it and I said “you know, this office needs to be aware of this, it may cause significant damage to the institution” and so part of my job as an Ombudsman is to give decision makers a head’s up.
Another Ombuds noted that when the formal office “call[s] me . . . and they ask me if somebody’s come to [my] office I will let them know. If I would say ‘I can’t tell you, I’m not going to tell you,’ that would not go over very well (O7A7:44-46).” In another example, a Title IX Coordinator reported hearing rumors from faculty members, but explained, “I didn’t know who and I didn’t know what exactly. . . . [T]hen the Ombuds came to me and gave me the who and the what and I took it . . . from there.”
By serving as notice and making the university responsible for acting, Ombuds both violate the confidentiality standard and discourage complaints. Ombuds conforming to the IOA Standards maintain confidentiality but are able to recommend ways the university can make improvements to the entire system. Ombuds often described the difference between formal and informal options:
I talked about [formal options and told her] “there are plenty of people on campus that can do that” . . . and [I] referred this person to some of those people if she wanted to exercise that option. There is nobody else on campus that has confidentiality, independence, and neutrality, so if I [handle complaints formally], not only am I duplicating an existing service, I am negating the unique and essential function of my role.
IOA-conforming Ombuds are essential for compliance with Title IX and they should not be mandatory reporters. Non-conforming Ombuds must be mandatory reporters, as they increase the risk of liability and provide no true alternative to the formal reporting system. Universities and their Ombuds must work together and use IOA resources to craft the contours of the role in a way that ensures confidentiality. Correctly designed, both formal and informal complaint options are necessary to comply with Title IX and to bring campus sexual assault out from the shadows.