You note: "The Title IX regulations, at 34 C.F.R. § 106.71(a), state the general rule that a recipient must keep confidential the identity of any person who has reported sexual harassment, or who has been reported to be a perpetrator of sexual harassment." There is one missing party in this statement--the complainant. The way you game the confidentiality system is by becoming a complainant yourself. There do not appear to be confidentiality restrictions on complainants releasing the information.
This opened a can of worms. I haven't changed my opinion but it did cause me to read up on another more recent (2021) case (Du Bois v. The Board of Regents of the University of Minnesota) where the Eighth Circuit Court of a appeals reached a conclusion that seems odd. This is not just my opinion because I have read some commentaries from those in the legal profession that express puzzlement to the extent of being borderline critical. Du Bois, an athlete, claimed that she was discriminated against because she defended her (female) coach in Title IX case alleging sexual misconduct. The court determined that 'she failed to show that she was treated differently because of her sex' which of course was not what she was saying. On close examination, technically this is obviously right, but it seems inconsistent with the aims of Title IX that there is asymmetric risk depending on which side of the investigation you are on as a witness. It really reinforces my view that Title IX is poorly defined allowing selective interpretations of who has an actionable case in respect of retaliation. I don't think there should be any ambiguity here in the GM case though. When I said 'any person who has reported sexual harassment' I meant the complainant regardless of whether they were the alleged victim or witness. The right to disclose your own identity as party to the investigation does not extend to revealing the identities of other people or information that would make someone's identity obvious. It makes no sense to have any kind of confidentiality arrangement if any party can just opt out without risk of censure. I think there needs to be more focus on intent in two senses. First, leaking the information to BuzzFeed had retaliatory intent. Second, the intent of the provision designed to prevent retaliation must ultimately be to protect the Title IX process and to make it safe to contribute information. Therefore the protection should extend to all participants. Arguably the treatment that Du Bois received sends a message that defending a respondent in a Title IX may leave you exposed - which is a kind of retaliation that frustrates the aims of preserving the integrity of the process. I will have to include this in a later episode on Title IX.
I will have to look at that. From memory my interpretation was that a person could disclose their own identity as a party (complainant or respondent) but not that of another party. For example, if a complainant was saying they witnessed something happen to someone else, they could reveal their own identity but not that of the alleged victim or the accused. If it is wrong I will correct it. I am no lawyer and certainly know little about US law but Title IX seems to be in the twilight zone between something that is legislated for but for which there is little due process or regulatory provision. It occurs to me that those in the Title IX office of a university are conflicted by the politics by default and also subject to campus pressure. For it to work (and I will eventually get to it) I think you need professional independent legal adjudication preferably from out of State. I have an episode called 'Passing the Gavel' that discusses this... I also mention how cases have been weaponised to allow administrators to grab power from the faculty. In an effort to have an easy life, it seems control has been willingly handed over. I think that has to be a mistake. It's not what I think of as a recognisable form of justice.
You note: "The Title IX regulations, at 34 C.F.R. § 106.71(a), state the general rule that a recipient must keep confidential the identity of any person who has reported sexual harassment, or who has been reported to be a perpetrator of sexual harassment." There is one missing party in this statement--the complainant. The way you game the confidentiality system is by becoming a complainant yourself. There do not appear to be confidentiality restrictions on complainants releasing the information.
This opened a can of worms. I haven't changed my opinion but it did cause me to read up on another more recent (2021) case (Du Bois v. The Board of Regents of the University of Minnesota) where the Eighth Circuit Court of a appeals reached a conclusion that seems odd. This is not just my opinion because I have read some commentaries from those in the legal profession that express puzzlement to the extent of being borderline critical. Du Bois, an athlete, claimed that she was discriminated against because she defended her (female) coach in Title IX case alleging sexual misconduct. The court determined that 'she failed to show that she was treated differently because of her sex' which of course was not what she was saying. On close examination, technically this is obviously right, but it seems inconsistent with the aims of Title IX that there is asymmetric risk depending on which side of the investigation you are on as a witness. It really reinforces my view that Title IX is poorly defined allowing selective interpretations of who has an actionable case in respect of retaliation. I don't think there should be any ambiguity here in the GM case though. When I said 'any person who has reported sexual harassment' I meant the complainant regardless of whether they were the alleged victim or witness. The right to disclose your own identity as party to the investigation does not extend to revealing the identities of other people or information that would make someone's identity obvious. It makes no sense to have any kind of confidentiality arrangement if any party can just opt out without risk of censure. I think there needs to be more focus on intent in two senses. First, leaking the information to BuzzFeed had retaliatory intent. Second, the intent of the provision designed to prevent retaliation must ultimately be to protect the Title IX process and to make it safe to contribute information. Therefore the protection should extend to all participants. Arguably the treatment that Du Bois received sends a message that defending a respondent in a Title IX may leave you exposed - which is a kind of retaliation that frustrates the aims of preserving the integrity of the process. I will have to include this in a later episode on Title IX.
I will have to look at that. From memory my interpretation was that a person could disclose their own identity as a party (complainant or respondent) but not that of another party. For example, if a complainant was saying they witnessed something happen to someone else, they could reveal their own identity but not that of the alleged victim or the accused. If it is wrong I will correct it. I am no lawyer and certainly know little about US law but Title IX seems to be in the twilight zone between something that is legislated for but for which there is little due process or regulatory provision. It occurs to me that those in the Title IX office of a university are conflicted by the politics by default and also subject to campus pressure. For it to work (and I will eventually get to it) I think you need professional independent legal adjudication preferably from out of State. I have an episode called 'Passing the Gavel' that discusses this... I also mention how cases have been weaponised to allow administrators to grab power from the faculty. In an effort to have an easy life, it seems control has been willingly handed over. I think that has to be a mistake. It's not what I think of as a recognisable form of justice.