Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Brett Sokolow <>]

Dear Colleagues,

 

This past week, media coverage has focused on controversial actions by the University of Oregon in accessing a student victim’s confidential counseling records in response to her lawsuit against the university.  Many of the discussions have been legalistic, and focused on statutory construction and exceptions to exceptions.  The National Behavioral Intervention Team Association (NaBITA), the Association of Title IX Administrators (ATIXA) and The NCHERM Group are issuing this joint statement to cut through the legalisms to state a clear ethical position. 

 

We call on all colleges and universities in the United States to immediately issue written clarification of their policies on the confidentiality of the treatment, counseling and advocacy records of victims who seek help from their universities.  We ask colleges and universities to reassure campus victims, health providers, counselors and advocates that their records are secure, maintained confidentially and will never be accessed by the university simply because the victim exercises his or her legal rights to sue the institution or grieve institutional noncompliance to government regulatory bodies.  

 

The stakes could not be higher. At issue is the question of whether campus victims can entrust their innermost private thoughts and struggles to confidential resources without fear their campuses will use their own records against them.  The answer will determine whether victims can turn to their universities in a time of need and with an expectation of trust.  Irrespective of the debate over the law, victims need to know that if promises of confidentiality are made, and they are directed to counselors, health providers and advocates as resources in a time of need, that campuses will deliver on the promise of confidentiality they have made.

 

In April of 2014, The US Department of Education’s Office for Civil Rights (OCR) published an extensive set of Questions & Answers on Title IX.  In that document, OCR directed campuses that licensed pastoral and professional counselors and health service providers were to be considered confidential for purposes of mandated reporting under Title IX.  OCR could not have carved out this safe space for victims on the expectation that universities would leverage murky distinctions between treatment records and education records to render that safe space moot.  

 

While spirited debate can engage the question of what the law allows, ethics must govern the question of what colleges and universities should do.  Higher education insists that it is a bastion of the moral high ground.  So, it must be.  The lawyers serving higher education know well how to defend a lawsuit without undermining the trust of every victim on every college campus.  Some victories come at too dear a price.  We cannot assure confidentiality across our campuses one day, only to strip it away the next when it is convenient for us.  

 

Victims need to know we are here for them.  The NCHERM Group, ATIXA and NaBITA invite higher education to join us in committing to provide a safe space for the confidential treatment records of all victims.   

 

Signed,

 

Brett A. Sokolow, J.D.

President & CEO, The NCHERM Group

Executive Director, ATIXA

Executive Director, NaBITA

 

W. Scott Lewis, J.D.

Partner, The NCHERM Group
Founder and Advisory Board Member, ATIXA

Past-President, NaBITA

 

Saundra K. Schuster, J.D.

Partner, The NCHERM Group
Founder and Advisory Board Member, ATIXA

Past-President, NaBITA

 

Daniel C. Swinton, J.D., Ed.D.

Managing Partner, The NCHERM Group
Associate Executive Director, ATIXA

Advisory Board Member, NaBITA

 

Brian Van Brunt, Ed.D.

Senior Executive Vice President for Professional Program Development,

The NCHERM Group

President, NaBITA