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94 Denv. L. Rev. 71 (2016-2017)
Out from the Shadows: Title IX, University Ombuds, and the Reporting of Campus Sexual Misconduct

handle is hein.journals/denlr94 and id is 79 raw text is: OUT FROM THE SHADOWS: TITLE IX, UNIVERSITY OMBUDS, AND THE REPORTING OF CAMPUS SEXUAL MISCONDUCT BRIAN A. PAPPASt ABSTRACT Confidentiality is a challenge and an opportunity for university ad- ministrators in charge of resolving campus sexual misconduct. As an opportunity, confidentiality can be used to build trust, provide self- determination, and ensure privacy for survivors and alleged perpetrators. Confidentiality also presents significant challenges because it may pre- vent people from the reporting of all known instances of sexual miscon- duct. Without knowing about an instance of sexual misconduct, universi- ty officials are unable to investigate and remedy problems, potentially exposing the institution to liability. Title IX Coordinators oversee a com- pliance regime that mandates reporting but in practice results in wide- spread underreporting of campus sexual misconduct. Both formal and informal reporting mechanisms are necessary to manage sexual miscon- duct disputes, but currently neither Ombuds nor Title IX Coordinators adhere to their respective archetypes. The result is increased liability risk to the institution, fewer procedural choices for survivors and alleged per- petrators, and processes that lack legitimacy. In order to fulfill the man- dates of Title IX, universities must implement and utilize organizational Ombuds offices that adhere to the International Ombudsman Associa- tion's (IOA) standards of practice. Non-conforming Ombuds must be mandatory reporters, as only a true alternative reporting mechanism can overcome the current ineffectiveness of the formal complaint system. TABLE OF CONTENTS INTRODUCTION .......................................... ...... 72 A. The Problem of Campus Sexual Misconduct ................ 74 B. The Legal Context of Campus Sexual Misconduct............ 75 C. Compliance Requires Both Formal and Informal Mechanisms ... 81 I. REPORTING MISCONDUCT IN A COMPLIANCE REGIME ............. 82 A. The Title IX Coordinator Archetype: Mandatory Reporting in a Compliance Regime.................................. 82 t Brian A. Pappas, Ph.D., LL.M., J.D., M.P.P., Associate Clinical Professor of Law, Associate Director of Alternative Dispute Resolution, and Title IX Coordinator at Michigan State University College of Law. The author gratefully acknowledges the able research assistance of Lorena Valencia and the helpful comments of John Bonine and members of the MSU Law Faculty. Any errors are mine alone. 71

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