Policy: Section IV
IV. Privacy and Confidentiality
Bates College is committed to protecting the privacy of all individuals involved in any report under this policy. All college employees who are involved in the college’s response, including investigators and hearing officers, receive specific instruction about respecting and safeguarding private information. Throughout the process, every effort will be made to protect the privacy interests of all individuals involved in a manner consistent with the need for a thorough review of the report. Such a review is essential to protecting the safety of the Complainant, the Respondent, and the broader campus community and to maintaining an environment free from discrimination and harassment.
The privacy of student educational records will be protected in accordance with the Family Educational Rights and Privacy Act (FERPA), as outlined on the Bates Registrar’s webpage. The use of employee records is governed by Human Resources policies outlined in the Employee Handbook, as well as federal and state law. The disclosure of private information contained in medical records is protected by the Health Insurance Portability and Accountability Act (HIPAA).
Privacy and confidentiality have distinct meanings under this policy.
Privacy means that information related to a report made under this policy will only be shared with a limited group of individuals who “need to know” in order to assist in the active review, investigation, or resolution of the report; and the information shared will be limited to the bare minimum necessary. While not bound by confidentiality, these individuals will be discreet, and respect and safeguard the privacy of all individuals involved in the process.
The college reserves the right to contact parents/guardians of students to inform them of situations in which there is a significant and articulable health and/or safety risk. Typically, the college will consult with the student prior to doing so.
Individuals participating in the resolution of a complaint, including the Complainant, the Respondent, all Advisors, and all Witnesses are expected to maintain the privacy of the resolution process. While there is an expectation of privacy around what the Title IX Coordinator, Title IX Team, other college officials involved in the resolution process, and Advisors may share with third parties, the Complainant and Respondent have discretion to share their own knowledge with others if they so choose. The college encourages the parties to discuss the potential impact of these disclosures with their Advisors, prior to doing so.
Confidentiality exists in the context of certain protected relationships, particularly among those who provide services such as medical care, mental health counseling and care, legal advice, and pastoral care. Information shared by an individual with designated on-campus confidential employees cannot be revealed to any third party without the express permission of the individual. These individuals are prohibited from breaking confidentiality unless there is an imminent threat of harm to self or others or as otherwise required by law.
C. Reporting Responsibilities of Employees
College employees responsible for student welfare and all supervisors who are not specifically designated as confidential resources under this policy are required to share with the Title IX Coordinator all knowledge of discrimination and harassment witnessed or shared with them in the course of their employment. This includes: faculty; coaches; administrators; security officers; junior advisors and residential coordinators; and other employees with a responsibility for student welfare.
This notification should be done promptly. While individuals must share all known details with the Title IX Coordinator, care should be taken to maintain the Complainant’s privacy as much as possible. Upon receipt of this information, the Title IX Coordinator will reach out to the Complainant to offer information regarding supportive measures and formal and informal resolution options.
Generally, disclosures made in climate surveys, academic assignments, IRB-approved human research projects, and speak-outs and rallies (e.g. Take Back the Night or Black Lives Matter events) do not provide notice that must be reported to the Title IX Coordinator by employees, unless the individual clearly indicates that they desire a report to be made or seek a response from the college.
Whenever possible, employees should alert students and co-workers of their obligation to report disclosures, which includes sharing the names of individuals involved and relevant facts regarding the alleged incident (including the date, time, and location), to the Title IX Coordinator prior to the disclosure of any personal information. We suggest faculty include this information on their syllabi.
Failure to report a known incident of harassment or discrimination by a non-confidential employee is a violation of college policy and could be subject to discipline.
D. Reporting Responsibilities Regarding Minors
All Bates employees and volunteers who know, suspect, or receive information indicating that a minor has been abused or neglected, or who has other concerns about the safety of a minor, must immediately notify the Title IX Coordinator. Under Maine law, abuse or neglect is a threat to the child’s health and welfare by physical, mental or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs or lack of protection from these, by a person responsible for the child. In the State of Maine, all educators and administrators are designated as Mandated Reporters and must report any abuse or neglect of a child to the Department of Health and Human Services (DHHS) Office of Children and Family Services (OCFS) or Maine District Attorney’s Office. The Title IX Coordinator will assist with this notification. Failure to take action may result in disciplinary action up to and including termination.
E. Request for Confidentiality
The college will pursue a course of action consistent with the Complainant’s request for confidentiality where possible. Where a Complainant requests that their name or other identifiable information not be shared with the Respondent or that no formal action be taken, the college will balance this request with its dual obligation to provide a safe and non-discriminatory environment for all Bates community members and to remain true to principles of fundamental fairness that require notice and an opportunity to respond before disciplinary action is taken against a Respondent.
In making this determination, the college may consider, among other factors, the seriousness of the conduct, the respective ages of the parties, whether the Complainant is a minor under the age of 18, whether there have been other complaints or reports of harassment or misconduct against the Respondent, the existence of independent evidence, and the rights of the Respondent to receive notice and relevant information before disciplinary action is sought. The Title IX Coordinator in consultation with the Title IX Team will evaluate all requests for confidentiality.
Where the college is unable to take action consistent with the request of the Complainant, the Title IX Coordinator will inform the Complainant about the college’s chosen course of action, which may include the college seeking disciplinary action against a Respondent. Alternatively, the course of action may include steps to limit the effects of the alleged harassment and prevent its recurrence that do not involve formal disciplinary action against a Respondent or revealing the identity of the Complainant.
F. Timely Warning
If a report discloses a serious, immediate, or continuing threat to the Bates community, the college may issue a campus wide timely warning or notification (which may take the form of an email, text, or other electronic communication to community members) to protect the health or safety of the community and to heighten safety awareness. A timely warning may be issued for a report of any act of violence, but is particularly likely when the college receives reports of assault, sexual assault, domestic violence, dating violence, and stalking that pose a continuing threat of bodily harm or danger to members of the community. Timely warnings will not include any identifying information about the Complainant.
G. Release of Information
All college proceedings are conducted in compliance with the requirements of FERPA, the 2013 Reauthorization of the Violence Against Women Act, the Clery Act, Title IX, state and federal law, and college policy. No information shall be released from such proceedings except as required or permitted by law and college policy.
At no time will the college release the name of a Complainant to the general public without express consent from them. The release of the Respondent’s name to the general public is guided by FERPA and the Jeanne Clery Act. The college may share non-identifying information about reports received in aggregate form, including data about outcomes and sanctions.
When the resolution of a complaint results in disciplinary sanctions, the release of information regarding these disciplinary actions will be governed by the Policy on Reporting Student Disciplinary Matters or as outlined in the Bates College Employee Handbook as applicable. In all circumstances, any release of information will be in compliance with all applicable state and federal laws.
Anonymous statistical information regarding reports must be shared with Bates Campus Safety and Security where required by the Clery Act. Annual Clery reporting to the U.S. Department of Education is required by all educational institutions. The information contained in the Clery Report only tracks the number of Clery-reportable offenses occurring at campus locations or college-sponsored programs (e.g., study away) and does not include the names or any other identifying information about the person(s) involved in the report.
H. Student-Athletes and NCAA Information-Sharing Requirements
As part of its commitment to fostering an athletic culture that supports student safety, the NCAA requires all student-athletes to self-disclose any personal conduct that resulted in an investigation or discipline through a Title IX proceeding or in a criminal conviction for sexual, interpersonal, or other acts of violence. Failure to accurately and fully disclose this information could result in penalties, including loss of eligibility to participate in athletics.
In addition, institutions are charged with a) confirming the accuracy of these self-disclosures, b) sharing student-athlete disciplinary information related to these issues with other NCAA institutions in the event a student-athlete wishes to enroll in a different institution, and c) disclosing to the Athletic Department when the institution begins any formal investigation or imposes any disciplinary action related to sexual, interpersonal, or other violence involving a Respondent who is a student-athlete. In all instances, the information shared will be strictly limited to that information necessary to meet these compliance requirements and will not include any information regarding the Complainant.
Student-athletes will receive notice of these requirements through the Athletic Department as part of their annual athletic compliance certification. Students who have questions about this policy may contact the Title IX Coordinator or the Deputy Title IX Coordinator for Athletics. Further information can also be found on the Bates College Athletic Department website.
I. Recording of Resolution Proceedings
Bates College policy prohibits unauthorized audio or video recording of any kind. If a Complainant, Respondent, Witness, Advisor, or third-party wishes to record any meeting or interview, they must notify the Title IX Coordinator of that request and receive expressed permission from every individual present.
The college reserves the right to record all meetings, interviews, and hearings, as necessary, to ensure a compliant and reliable process. All participants will be made aware of audio and/or video recording and how that recording will be used prior to the start of the meeting, interview, or hearing. All recordings will be retained and made available to the parties upon request
J. Maintenance of Records
The Title IX Coordinator will be responsible for documenting all reports under this policy and the actions taken to resolve them. These records will be maintained consistent with college records policies and as required by state or federal law.
In compliance with the federal 2020 Title IX Regulations, the college will maintain for a period of at least seven years the following records related to Title IX reports/complaints:
- any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment, including:
- the basis for all conclusions that the response was not deliberately indifferent;
- any measures designed to restore or preserve equal access to the college’s education program or activity; and
- if no supportive measures were provided to the Complainant, the reasons why such a response was not clearly unreasonable in light of the known circumstances;
- any records related to the Formal Resolution of each sexual harassment allegation, including the investigation report, any determination(s) regarding responsibility, and any audio or audiovisual recording or transcript required under federal regulation;
- any disciplinary sanctions imposed on the Respondent;
- any remedies provided to the Complainant designed to restore or preserve equal access to the college’s education program or activity;
- any appeal and the result therefrom;
- any Informal Resolution and the result therefrom; and
- all materials used to train Title IX Coordinator and Deputy Coordinators, Investigators, Hearing Officers, Appellate Officers, and any person who facilitates an Informal Resolution