I excerpt an email sent by UCLA Chancellor Gene Block to all faculty:
The new policy strikes me as problematic in several ways. First, I resent being drafted into the Title IX cops, especially given the very legitimate critiques of university policies in this area. Suppose I think that UCLA's definition of sexual harassment is too broad (as many are) or I think UCLA's policy for handling complaints in this area lacks due process (as many do). Requiring me to become an informer despite those concerns strikes me as a serious abuse of academic and personal freedom.
As with mandatory reporting requirements in other areas, the new UCLA policy offends the very substantial reasons that Anglo-American law has generally refused to imposed mandatory Good Samaritan rules. Specifically, compelled reporting is an infringement of the individual's autonomy. Indeed, what has been said of the Goodf Samaritan rule in the rescue context strikes me as equally applicable here:
In the rescue context, the principle of liberty conflicts with the “Good Samaritan” moral obligation to assist others. The Good Samaritan principle is subservient to the liberty principle and thus generally has not created legal duties. Otherwise, requiring a person to act affirmatively for the benefit of another would make him, in effect, the “uncompensated servant of another.”
Professional Obligation and the Duty to Rescue: When Must A Psychiatrist Protect His Patient's Intended Victim?, 91 Yale L.J. 1430, 1433 (1982).
A similar concern is raised by the fact that the policy apparently requires one to report even if that is not what the victim wishes (apparently even without consulting with the victim). This strikes me as an equally objectionable encroachment upon the individual liberty of competent adult victims by eliminating the requirement of victim consent for reporting. Cf. Rebekah Kratochvil, Intimate Partner Violence During Pregnancy: Exploring the Efficacy of A Mandatory Reporting Statute, 10 Hous. J. Health L. & Pol'y 63, 91-92 (2009) (making the same argument with respect to mandatory reporting of such violence).
Finally, I am deeply troubled by the requirement to report "possible" sexual harassment. I have been unable to find a definition of "possible" in the new policy. I assume possible means something less than "more likely than not," but how much less? How do I know when I am supposed to report?
“Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications”
Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972).
All in all, I think we can safely add this policy to the long and ever growing list of Title IX excesses.
