Who Has to Report? Title IX, Clery and Mandated Reporters

A residence hall advisor hears from a student about an assault. Three separate sets of rules may govern what happens next, and they do not share a vocabulary. Title IX asks whether the institution has been given notice. Clery asks whether the report went to someone the institution has named a campus security authority. State law asks whether the person is a mandated reporter of child abuse. The labels “mandatory reporter” and “responsible employee” tend to get applied to all three at once, and neither phrase appears in the current Title IX regulations or in the Clery campus security regulations.

Title IX: the regulation defines notice, not mandatory reporting

The Title IX regulation never tells an employee to report anything. It defines when the institution is charged with knowing. A school or college has “actual knowledge” when sexual harassment or an allegation of it comes to the Title IX Coordinator, to any official with authority to institute corrective measures on the institution’s behalf, or, in an elementary or secondary school, to any employee (34 CFR 106.30(a)). The definition adds that the mere ability or obligation to report, or having been trained to report, does not make someone an official with authority.

That gap between notice and reporting is a common source of confusion. When the Department explained the 2020 rule, it noted that by 2017 many, if not most, postsecondary institutions had policies designating nearly all their employees as “responsible employees” and “mandatory reporters” (85 FR 30042). It said that nothing in the regulations prevents an institution from requiring professors, instructors or all employees to report every incident to the Title IX Coordinator, and that an institution may empower as many officials as it wishes with authority to institute corrective measures, whose knowledge then counts as the institution’s own (85 FR 30107). It also described the postsecondary approach as leaving a student free to confide in a trusted professor or resident advisor without automatically starting a formal response (85 FR 30111).

Are professors mandatory reporters?

Under Title IX, the regulation does not make them so. Institution policies often do, and the policy is what binds the employee. Whether a report to a professor is also notice to the institution depends on whether the professor’s role has been given authority to institute corrective measures. The same reasoning answers the question for coaches, advisors and resident advisors: look first at what the institution’s policy requires of the role, then at whether the role carries authority to act.

At an elementary or secondary school the question is simpler, because every employee’s knowledge counts. The Department’s reasons were that young students cannot be expected to tell which employees’ knowledge triggers a response, and that school employees are typically mandated reporters of child abuse under state law (85 FR 30039).

Clery: who is a campus security authority?

Under the Clery Act regulations, an institution has to include in its crime statistics the listed crimes that occur within its Clery geography and are reported to local police or to a campus security authority, usually shortened to CSA (34 CFR 668.46(c)(1)). The regulation defines a CSA in four parts: a campus police or security department; any individual with responsibility for campus security who is not part of one; any individual or organization the institution’s security policy names as a place students and employees should report crimes; and an official with significant responsibility for student and campus activities, including student housing, student discipline and campus judicial proceedings (§ 668.46(a)). A pastoral or professional counselor is not a CSA when acting in that role.

Being a CSA does not make a person an investigator. A report to a CSA is recorded in the statistics for the calendar year in which it was made, and Clery reporting does not require an investigation or disclosing the victim’s identifying information (§ 668.46(c)(2) and (c)(3)). It can also start a timely warning decision: the institution has to warn the campus community about listed crimes reported to its CSAs or to local police that it considers a threat, though no warning is required for crimes reported to a pastoral or professional counselor (§ 668.46(e)).

The regulation lists no job titles. The Department’s Clery appendix, which replaced the 2016 Handbook in October 2020, says it is up to the institution to identify its CSAs and that the Department will defer to a reasonable designation. It adds that the regulation does not require an employee with minimal responsibility for student and campus activities to be treated as a CSA, and gives as examples people whose duties are irregularly scheduled or are not part of their primary job description (Clery Act Appendix for FSA Handbook). Which advisors, coaches and residence life staff are CSAs is therefore a decision each institution makes and writes down. The appendix is guidance, not regulation.

Where Title IX and Clery overlap

The two frameworks meet at one point. The appendix says that a CSA for Clery purposes will include employees who meet the Title IX definition of an official with authority to institute corrective measures. On the Department’s reading, an institution that gives a role that authority has also created a campus security authority, which is a reason to make the two designations together and keep one current list.

State mandated reporter laws are a separate layer

Mandated reporting of child abuse and neglect comes from state law. State laws designate the groups of professionals required to report suspected abuse, and the Child Welfare Information Gateway publishes a national overview and links to a summary for each state and territory. This post does not summarize them. The Department said in 2020 that the Title IX regulations do not alter federal, state or local mandatory reporting obligations of school employees, and that those obligations are distinct from the ones in the regulations (85 FR 30191).

A school counselor can be a mandated reporter under state law and an employee whose knowledge counts as Title IX notice at the same time. Whether state law reaches a college employee such as a professor or a member of residence life staff is read from the state’s own statute, not from Title IX or Clery.

One conversation, three questions

Return to the residence hall advisor. The student describes an assault in a residence hall. Three questions follow, and each has a different source.

• Title IX. Is the advisor an official with authority, or required by the institution’s policy to report to the Coordinator? If the advisor reports, the Coordinator has notice and the response duties in § 106.44(a) begin.
• Clery. Is the advisor a campus security authority the institution has designated? If so, and the crime is one of the listed Clery crimes within Clery geography, it is recorded for the calendar year in which it was reported to the advisor, whether or not anyone investigates, and the institution has to decide whether a timely warning is needed.
• State law. Does the state’s statute cover this employee, and is the student someone it protects, such as a minor? That answer comes from the statute and the institution’s counsel.

One conversation can start three separate obligations, often handled by three different offices.

What an intake record should capture

Because the three questions come from different sources and land on different desks, the intake record has to carry enough to answer all of them later: who made the report and in what role, how and when it was received, which offices were told and when, how the institution classified the incident and its location for Clery purposes, whether a timely warning was considered and what was decided, and whether a state report was made and by whom. A case management system that routes a report to every office with a stake and timestamps each handoff gives those answers without anyone reconstructing them afterward. The same reasoning runs through Clery Compliance Isn’t an October Problem and Campus Safety Case Management: Why Records Matter. Once a report becomes a Title IX complaint, the next steps are laid out in The Title IX Grievance Process, Step by Step.

Key takeaways

• The Title IX regulation defines notice to the institution. It does not use the phrases “mandatory reporter” or “responsible employee,” and neither does the Clery campus security regulation.
• In an elementary or secondary school, any employee’s knowledge is notice. At a college, notice means the Coordinator or an official with authority, and a duty to report does not by itself confer that authority.
• An institution may require all of its employees to report. That is a policy choice, and the policy is what binds the employee.
• A Clery campus security authority is whoever the institution designates within the regulatory definition, and the Department says CSAs include officials with Title IX authority.
• State mandated reporter duties are separate and set state by state. For more on how the three fit together at intake, see A Civil Rights Complaint Can Come Through Any Door.

Sources

1. 34 CFR 106.30, Definitions, including “actual knowledge” (eCFR, current text)
2. 34 CFR 106.44, Recipient’s response to sexual harassment (eCFR, current text)
3. 34 CFR 668.46, Institutional security policies and crime statistics (eCFR, current text)
4. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 FR 30026 (May 19, 2020)
5. Federal Student Aid, Rescission of and Replacement for the 2016 Handbook for Campus Safety and Security Reporting (Oct. 9, 2020, updated Jan. 19, 2021)
6. Clery Act Appendix for FSA Handbook (PDF)
7. Child Welfare Information Gateway, Mandatory Reporting of Child Abuse and Neglect (May 2023)

How Casearoo handles this: campus safety incident reporting software.