Sexual abuse prevention groups call for Education Deptartment to investigate nondisclosure agreement use

Dive Brief:

  • A coalition of 37 sexual assault prevention groups and law firms is calling on the U.S. Department of Education to investigate colleges reportedly coercing students into signing agreements that restrict them from discussing misconduct they report under Title IX.
  • Title IX is the cornerstone federal law banning sex-based discrimination in education settings, including sexual harassment and assault. In a letter Thursday, the organizations accuse institutions of pressuring students into following gag orders during or after Title IX investigations.
  • The groups want the Education Department’s Office for Civil Rights to prohibit colleges from forcing students to sign such confidentiality agreements before providing them with accommodations or investigating their cases. They also want OCR to issue guidance for how colleges should inform students of their legal rights.

Dive Insight:

The letter to the Education Department comes at a volatile time in Title IX’s history. The Biden administration is rewriting regulations concerning the federal antidiscrimination law, and the Education Department says it will issue a draft of the new rules this month. However, the agency has delayed releasing new regulations twice. 

This rule will direct how colleges must investigate and potentially punish campus sexual assault. It will replace one implemented by former Education Secretary Betsy DeVos. The DeVos-era regulations construct a tribunal system for evaluating sexual misconduct cases, as a way, the former secretary said, to protect long-disregarded due process rights.

Thursday’s letter urges the department to craft policies about nondisclosure agreements as the new regulations loom.

It states that the Education Department should clarify, either in guidance or regulation, that colleges cannot cite federal privacy law as a reason to withhold information about sexual abuse cases. Institutions must provide students or their representatives copies of educational and investigative records when requested, the letter states. Colleges do not share details about sexual assault probes to the public.

An Education Department spokesperson said in an email “we look forward to reviewing the letter and responding directly to the organizations.”

The bulk of the letter focuses on the trend of colleges allegedly bullying students into signing confidentiality agreements that waive their legal rights under Title IX, such as receiving accommodations from a college. 

Students aren’t often aware of the complexities of Title IX cases and are participating in these agreements unknowingly. Demanding students sign an agreement as a condition to receive information about and participate in Title IX cases is illegal, the organizations argue.

Officials are forcing students, they say, to sign the agreements to receive federally guaranteed protections, as well as information connected to Title IX cases, such as a case’s outcome or related sanctions.

“The agreements — conditioning access to a school’s grievance process on silence and a forfeiture of other rights or due process — are coercive, unconscionable, and retaliatory,” the letter reads. 

It references several examples of these contracts, such as one drafted by the University of Alabama at Birmingham. The agreement, which the organizations obtained a copy of, prohibits students and others who participate in Title IX processes from sharing details of those procedures. The university is requiring them to sign it to receive evidence collected during an investigation and a final report stemming from it.

Those who violate the deal could be expelled, or in the case of employees, be fired. 

U of Alabama at Birmingham spokesperson Alicia Rohan said in an email the university’s nondisclosure agreement does not prevent students from filing complaints, lawsuits or police reports. 

She said the contract is “intended to support a complainant bringing claims forward without fear of public reprisals” and complies with federal regulations. 

“We encourage our students to report Title IX issues and have found that the confidentiality afforded by the Title IX process makes students more comfortable in reporting such matters,” Rohan said. 

York College of Pennsylvania, a private institution, has a similar arrangement as U of Alabama at Birmingham, and the college references federal privacy law as a reason for having Title IX case participants sign its confidentiality agreement. The college says that students and others may be receiving protected information under the privacy law. 

The contract states the college could pursue legal action if the nondisclosure agreement is violated. 

A statement from York College said it asks individuals to sign the agreements to protect educational records from being disclosed outside of disciplinary processes. Its agreement explicitly states that it is not intended to prevent an accuser from discussing allegations, the college said.

The document also does not stop students from using evidence gathered by the college in court cases or complaints to the Education Department, the college said. And the college “has never and would never threaten to impose academic sanctions on a student for discussing their allegations with anyone.”

“The use of such agreements is sanctioned by the U.S. Department of Education,” York College’s statement said.

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