University Times

Faculty Assembly has approved a revised sexual misconduct policy and a new University procedure on sexual misconduct, developed in light of changing federal requirements.

Despite misgivings by some, the Assembly moved the documents in a 17-8 vote with three abstentions, in the interest of having an improved policy in place before freshmen arrive in August. The draft documents go to Senate Council for review next week.

“The legal landscape around sexual misconduct has dramatically changed, due a lot to how the U.S. Department of Education is interpreting and enforcing Title IX and due to amendments in the Violence Against Women Act,” said Laurie J. Kirsch, vice provost for faculty affairs, development and diversity, in presenting the documents to the Assembly May 10.

Kirsch chaired a provost’s ad hoc committee that has spent the past year reviewing Pitt’s existing policy and developing recommendations to revise and strengthen University sexual misconduct policy.

In addition to revising the existing policy, the committee developed a separate procedure document describing options for reporting misconduct, filing a complaint, investigation and resolution of complaints, and the appeals process.

The Council of Deans endorsed the proposed policy and procedure in March and the University Senate’s equity, inclusion and anti-discrimination advocacy committee did so last month, Kirsch said.

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Among the changes that troubled some faculty are the “responsible employee” designation and associated reporting requirements that some say could chill relations between faculty and students who wish to confide in them.

“It’s a broad definition and it means that most University employees would be considered responsible employees, who are therefore required to contact the Title IX office promptly upon learning of alleged sexual misconduct, sexual violence or sexual harassment,” said Kirsch.

Because of that reporting requirement, responsible employees cannot guarantee confidentiality. “If a victim requests confidentiality, then you can direct that person to resources such as the University Counseling Center,” Kirsch said.

Marianne Novy of English said she is glad a Title IX office is at work at Pitt. “This is very difficult policy to delineate and I really appreciate the work that you’re doing,” she said.

She noted, however, that concerns about faculty reporting are widespread, calling attention to a 2016 report by the American Association of University Professors academic freedom and tenure committee and committee on women in the profession that characterizes mandatory faculty reporting as overly broad and not required by Title IX.

Other concerns are in play as well. Assembly member Seth Weinberg of dental medicine noted, “Right now there is debate going on between faculty rights groups and the Department of Education about speech in the public sphere that may be sexually charged speech, being pursued under Title IX,” he said.

“There’s a big issue right now where universities are effectively being forced to choose between protecting the First Amendment and enforcing Title IX,” with little guidance on what to do.

Kirsch agreed that the situation is fluid and Pitt is not alone in its struggle to address the complicated issues, adding that the committee modeled some of its revisions on other universities’ policies.

She acknowledged that the documents should be reviewed regularly and updated accordingly. However, she said, “It’s important that we move forward with these changes now,” given that Pitt’s existing policy “is not consistent with where the legal landscape is at this point in time.”

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Patrick Loughlin of engineering worried that the policy “lumps together a variety of different potential acts under sexual misconduct: They run the gamut from jokes and innuendo to rape and sexual harassment.

“I don’t equate those on the same scale; I think it’s problematic to do so,” he said.

“My point is rape is a crime; telling an off-color joke is not. I don’t think the procedures for handling that should be the same.”

He also expressed concern that the proposed policy requires responsible employees to report to the Title IX office but states they “should not share information with law enforcement without the victim’s consent or unless the victim has also reported the incident to law enforcement.”

“If someone comes to me and says ‘I’ve just been raped,’ why is my first response not to call the police as a University employee, but to call Title IX?”

Noting that the Pitt police are part of the University community, and that they are trained in investigations and in dealing with victims of crime, “At least for actions of violence and aggression, why aren’t we asking the University police to take charge of this?” he asked.

Title IX coordinator Katie Pope said victims are encouraged to go to the police. “The reason that we’re obligated by the federal guidelines to not automatically report … is because it’s up to the victim to determine whether or not they want to involve the police.”

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Much of the Assembly’s hour-long debate centered on faculty reporting requirements.

Pamela W. Connelly, associate vice chancellor for diversity and inclusion, said the federal Office of Civil Rights, in addition to naming specific categories of responsible employees who must report incidents to the Title IX office, views “anybody else the student thinks can help them” as responsible employees.

“If the student’s coming to you, they’re coming to you because they think that you can help them. It’s not what the University thinks that matters; it’s what the student thinks,” she said. “That’s the position we’ve been put in. I don’t see it changing anytime soon.”

Being designated a responsible employee is akin to being a mandated reporter, observed Elizabeth Mulvaney of social work. An expectation of reporting can prevent incidents from “going underground,” she said. “But on the other hand, what are the ways we’re going to communicate to people who are abused … that telling us the story may put into play things they are not yet prepared to have go into play?”

Michael Goodhart of political science argued that the policy could lead faculty to simply post their office doors with signs warning that certain topics must be reported to the Title IX office.

“I think back to the few awful times in my life when I’ve had these conversations with people who’ve come to my office. And I can’t imagine the moment in the conversation when I’m saying, ‘I’m sorry, but before you go on, let me tell you that everything you tell me — if you choose to tell me anything further — is going to have to be reported to the Title IX office, whether you want me to report it or not.”

Senate past-president Michael Spring commented: “I don’t think the procedure does enough to respect the fact that faculty are going to be put in a very awkward situation” if they’re forced to report to Title IX regardless of a student’s wishes.

“I’d like to see, with every intent to make sure that the maximum protection is provided to the student, the recognition that sometimes a faculty member is approached in confidence.”

Spring said, “I don’t want to tell the student not to come in and tell me.”

Reporting to the Title IX office doesn’t obligate a victim to take any particular action, but enables staff to offer resources, said Pope. “The process is driven by what the student wants to have happen.”

Connelly acknowledged that debate will continue, but Pitt’s policy must be updated. “We’re never going to have universal agreement on this. What we have is the (federal Office of Civil Rights) saying what responsible employees are.

“What we also have is a batch of freshmen who are going to be coming in in August. And what we have on the books right now is a policy but no procedure. And the policy is not up to Title IX standards,” she said.

“We do have a large group of people coming in to join our community soon, and I don’t want us to lose the opportunity for a vast improvement because of something we can probably debate for years to come.”

Kirsch agreed. “Our current policy does not address the issues that, as a University community, I think we need to address,” she said, adding that the committee had similar discussions and debates.

“I think everybody recognized that this is an area that our current policy is not as strong as it could be. And I think everybody also recognizes that this is an area that we’re going to continually be reviewing.”

(The proposals can be viewed online: www.utimes.pitt.edu/wp-content/uploads/2016/04/Draft-Sexual-Misconduct-Policy.pdf and www.utimes.pitt.edu/wp-content/uploads/2016/04/Draft-Sexual-Misconduct-Procedure.pdf)
—Kimberly K. Barlow