At least seven universities and colleges and one high school across the country are allegedly requiring student sexual assault survivors to sign nondisclosure agreements (NDAs) or other agreements as a condition of receiving supportive services or having their Title IX claims investigated. In addition to protecting students from sex discrimination, Title IX is supposed to protect students who allege sexual assault by anyone on campus. But dozens of civil rights groups are now accusing schools across the country of creating gag orders to silence students from sharing evidence from their case, talking about the case and trial to others, or sharing their story at all. At a moment when defamation lawsuits for sexual assualt survivors are becoming more prevalent, advocates say schools are trying to shield themselves from litigation by attacking the freedom of speech of survivors.
The national consortium of 37 civil rights organizations, including survivor advocates spanning legal, social science, and mental health professional organizations, wrote a letter to the Department of Education last week to investigate at least eight claims that students are being threatened with expulsion or civil litigation if they fail to comply with their school’s terms. They say schools are “increasingly exploiting students” in the process of Title IX protections.
“It is often an important healing or advocacy avenue for survivors to be able to talk about what happened to them,” said Kel O’Hara, a staff attorney at Equal Rights Advocates.
O’Hara said many of their clients, most of whom are student survivors, come forward to share their stories in an effort to make sure others are safe, and to also shed light on the Title IX process itself. But many of the NDAs students are being asked to sign prohibit discussing the Title IX process at all. For already marginalized students who cannot afford lawyers, they are especially vulnerable to being silenced by a process that is meant to help heal their trauma.
“For a lot of survivors, the Title IX process itself is harmful,” O’Hara said. “Not being able to talk about [the process] is really concerning. The model that I work under as an advocate is the empowerment model, which says we really want to give power back to survivors. So what’s happening when we have these NDAs is that we are further limiting the power of the survivor to decide what path forward is best for them, how and when they want to share their story to communicate with other people to engage in advocacy, and all of that is not great.”
Schools listed in the letter, including The University of Alabama at Birmingham and Villanova University, among others, have imposed NDAs and other limiting agreements, such as a “Stay Away Agreement” or “Agreement Regarding Evidence Disclosed” as preconditions to students accessing their federal rights. According to advocates, student survivor rights are being “held hostage” and put schools and respondents, which in some cases may be school faculty, in even more powerful positions against student survivors.
“The people who are most hurt by this are people who already feel less empowered to engage in this system,” O’Hara said. “[They are people] who do not have the same access to support who might not feel comfortable coming forward at all. When we’re having these conversations, all survivors get hurt, but those are the people I worry about most and those are the people that I think we really need to be keeping in mind.”
One of O’Hara’s biggest concerns includes limiting the ability of students to hold schools accountable for ways that they erred.
“The concern from my perspective is, whether a school has good intentions or less good intentions, the cumulative effect can sort of all end up in the same place where we’re overly limiting what survivors can say,” O’Hara said.
The group, which includes Equal Rights Advocates, is asking the DOE for a meeting to discuss the concerns, for the Office of Civil Rights to conduct a full investigation, and for the Office of Civil Rights to consider their solutions. The solutions include prohibiting the use of confidentiality agreements and contracts as prerequisites to providing accommodations, investigations, or resolutions during the process, or for schools to include templates of potential NDAs to their Title IX policies so that students are not caught off guard and are aware of the possibility from the beginning. The group is also asking to require schools to include a notice advising students of their right to seek legal counsel before signing any confidentiality agreements.
O’Hara expects the new Title IX regulations to be proposed sometime this month, and they hope the regulations prohibit conditional agreements.