Mandatory Reporting Perils

A Swarthmore College student who was booted from the resident assistant program for refusing to name a sexual assault victim says she’s being punished for speaking out publicly – and prompting a federal investigation, no less – about the institution’s failure to protect those very survivors.

Retaliating against would-be R.A. Mia Ferguson would be illegal under rules enforced by the same U.S. Education Department unit that is investigating Swarthmore, the Office for Civil Rights, and could theoretically lead to an investigation in itself. But Ferguson’s case also points to the complexities inherent in requiring R.A.s to report any known instances of sexual harassment, particularly at a time when those advisers are increasingly doubling as activists to whom hundreds of assault victims -- on campus and off -- are turning to for support.

“If I had given that victim’s name, she would not have trusted me. No one would have ever trusted me again,” Ferguson said in an interview.

It’s commonly understood, thanks to OCR guidance dating to the 1990s, that colleges should consider R.A.s “responsible employees,” and by extension, mandatory reporters (along with other staff who oversee student behavior) under Title IX of the Education Amendments of 1972. And most colleges do.

“Their function is that they are responsible for reporting and overseeing many forms of student behavior,” said Gina Smith, a partner at Pepper Hamilton law firm who consults with campuses (including Swarthmore) on how best to address sexual assault and comply with federal laws. “They are held out there as an extension of the administration of a college.”

However, R.A.s – and not just those who are publicly known for their advocacy – often struggle with that role, students say. Forced to choose between a student’s -- perhaps a friend’s -- desire for privacy and contractual obligations, many R.A.s don’t know what to do. After seeing her experience, Ferguson said, some have expressed a disinclination to report on students who’ve confided in them while working.

“That’s essentially not doing your job,” said Chris Losciavo, associate dean of students and deputy Title IX coordinator for students at the University of Florida. “You might as well have not done rounds.”

In most cases, not reporting information gleaned while working as an R.A. is a fireable offense, said Losciavo, who is also president of the Association for Student Conduct Administration. But the Swarthmore case is different because the alleged assault took place before Ferguson became an R.A.

Despite lack of federal guidance on this point, Losciavo said, there is wide agreement among college officials that mandatory reporting rules cover only the time during which the R.A. is employed.

Ferguson, who accepted the offer for a position before she filed federal Title IX and Clery Act complaints against Swarthmore in the spring, was fired Tuesday, a day after she signed the contract, when she again, after having done multiple times before signing, refused to name the victim.

A Swarthmore spokeswoman, Alisa Giardinelli, said that while the college “would never” otherwise require an R.A. to disclose information learned in the past, this case was unique.

“The ONLY issue at play here was that last week a new Resident Assistant disclosed an incident of sexual assault both to the College and publicly among other R.A.s during R.A. training,” Giardinelli said in an e-mail, noting that the alleged perpetrator is still a student. “Once she raised it as a current safety concern, she had a responsibility to share the information that would allow the college to investigate and safeguard individual and community safety. If any R.A. cannot accept the responsibilities that go along with his/her position — especially when it pertains to Title IX responsibilities — then they cannot serve credibly in that role to help keep our campus safe.”

Giardinelli added that employing a student who declined to uphold the law and campus policy would put the college at risk of violating both Title IX and the Clery Act.

This case could ultimately set precedent on whether responsible employees should be expected to report knowledge learned before being hired, said S. Daniel Carter, director of the 32 National Campus Safety Initiative for the VTV Family Outreach Foundation.

And in this case, the college must decide how to act after being informed that a crime took place but being hindered by investigating it.

Smith said, “It would be counterintuitive to expect that the school would not want all the information it could have, and should have, to evaluate the safety of the community.”

Despite a lack of clarity on whether previous allegations should be reported, colleges have been doing much more to educate R.A.s on their mandatory reporting responsibilities since OCR’s latest guidance, a “Dear Colleague” letter issued in 2011, sent many campuses scrambling to make sure they were complying with Title IX as it relates to sexual harassment.

Further, the recent resolution agreement at the University of Montana, which OCR called a “blueprint” for colleges nationwide, requires all employees, R.A.s included, to report all known cases of sexual violence within 24 hours.

“In the aftermath of the Dear Colleague letter, the training for R.A.s has increased to better communicate the expectations and obligations under Title IX,” Smith said. “If we improve the way we communicate what is expected, and what will be done when the expectations are met, it will feel less like a line in the sand and more of a system of support that is designed to eliminate hostile environments.”

But for some students, that might be a hard sell.

Andrea Pino, a University of North Carolina at Chapel Hill senior who helped file Title IX and Clery complaints there, said she and the other R.A.s received absolutely no training on mandatory reporting. Pino, who is no longer an R.A., became overwhelmed by the sheer caseload and felt that administrators were more worried about demonstrating they cared about assault than looking out for student victims.

“They put us in this paradoxical role in which you’re expected to report and take care of them, but when it comes to reporting, that’s not really your role anymore,” said Pino, an activist who helped create the IX Network, a national support group and advocacy team for sexual assault survivors. (They and others have helped file federal complaints on more than 20 campuses.) When students approached her with stories, Pino said, they did so because she was a public survivor, not because she was an R.A.

“Mandatory reporting is supposed to alleviate that lack of transparency but putting students in this predicament in which they do not feel like they can trust people for confidentiality is doing the opposite,” she said. “It’s literally putting students in situations in which they can’t be honest.”

E.W. Quimbaya-Winship, deputy Title IX coordinator and student complaint officer at UNC, said training for mandatory reporters in residence halls was thorough and comprehensive this year, with discussions about Title IX and campus policies, the dynamics of violence, what happens when you make a report and how to respond to students who come to you.

"When we keep some forms of reporting silent, I think along with that, there are issues of shame and embarrassment implied in that sometimes,” Quimbaya-Winship said. “More times than not, the response from the students who report [to R.A.s], what I generally get from them is, ‘I didn’t think someone would care’ or ‘I didn’t think you had something for me.' ”

Some victims do say they don’t want to move through campus procedures of meeting with administrators or filing a complaint, Quimbaya-Winship said, in which case officials will determine whether allowing that would endanger others on campus.

“We really do try to balance the needs and wants of that individual versus the safety of the larger community,” he said.

Part of the problem sometimes, Losciavo said, is that while R.A.s may understand their obligations, the students who talk to them may not. One way to address that is, if an R.A. can spot a story coming, to tell the student preemptively that he or she will be required to pass this information along, and offer alternative confidential support services, such as a counselor.

“What we don’t want to do is silence victims from coming forward,” he said. “At the same time, once you have a certain amount of information, as an institution, you’re required to act.”