'Gag order' against assault: Schools bully young accusers into waiving rights, lawyers say
A student at Villanova University who reported allegations of sexual misconduct was asked to sign a form that prevented her from sharing evidence of the case with almost anyone, even her parents. Violating the terms could have affected the outcome of the school’s investigation into what happened.
At the University of Alabama at Birmingham, a contract presented to students says that just talking about the process of reporting sexual misconduct could get a student expelled.
At York College of Pennsylvania, one student said he was threatened with academic discipline for telling his story on a podcast, violating a nondisclosure agreement that said he couldn’t discuss his allegations, even though he didn’t name the student he accused of rape.
These conditions, uncovered in an investigation of school policies for dealing with campus sexual violence, reveal an emerging trend: Schools are bullying students who report sexual assault into waiving certain rights before they can proceed with internal misconduct hearings.
It’s a practice that runs afoul of the law, according to several experts, and these three schools are not the only ones forcing students into problematic contracts. Public records requests at several schools turned up waivers that take away students’ right to discuss the investigative process, to review evidence in their own cases, and even to share evidence with advocates or police. The punishment for violating can be anything from being placed at a disadvantage at their hearing to expulsion.
It’s not supposed to be this way. Federal law says schools must investigate complaints of sexual misconduct and violence unconditionally, and they must give both sides equal access to evidence.
This is a process separate from the criminal justice system, and it’s governed by two laws: Title IX, which bans discrimination based on gender, and the Clery Act, which mandates reporting of crimes.
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Uncovering these waivers is difficult. Students often go through the Title IX process without being well-versed in their rights and without consulting an attorney. The campus tribunal process is inherently secretive, and because of student privacy laws and the sensitivity of these cases, documents are often not attainable by watchdogs.
The schools that responded to questions about the contracts, for the most part, said they were intended to ensure the privacy of those involved. But often students report that they feel student privacy laws are exploited to cover up misdeeds or shield the accused, resulting in some cases with more students being victimized.
Given the lack of transparency in such cases, it’s telling that over the past two years, attorneys and advocates have collected more than a handful they’ve stumbled upon while representing survivors. Several more were found using public records requests.
About a year ago, Washington, D.C.-based attorney Laura Dunn, who has built a career handling Title IX cases, shared four cases she came upon with a lawyer at the San Francisco-based nonprofit Equal Rights Advocates and learned they also had come across a few examples.
Together, they decided to pen a letter to the U.S. Department of Education’s Office of Civil Rights, writing that these forced waivers of rights can violate the law.
The letter, dated Thursday and signed by more than 35 others, calls the agreements “coercive, unconscionable, and retaliatory” and says they wrongly shift the onus to the alleged victim of sexual violence.
Dunn and the Equal Rights Advocates hope the letter will influence President Joe Biden’s Administration as it considers new Title IX regulations this spring. It goes on to ask that the Department of Education “explicitly prohibit contracts of adhesion that alter the federal rights of students participating in a campus grievance process.”
‘Another way to shut me up’
Last spring, a student at Villanova University near Philadelphia reported that she was sexually assaulted in her dorm room by a male acquaintance. She immediately told friends and, six days later, reported the incident to the university’s public safety office.
School investigators gathered text messages, interviewed witnesses who were there that night and spoke to others in whom she had confided.
But before the hearing in her case, she was presented with a document to sign, which said she couldn’t share the evidence with anyone, not even her parents. According to several people familiar with the Title IX process at different schools, a notice of confidentiality is commonly presented when evidence involving other students is shared. Villanova was different by requiring a contract; if the woman didn’t sign, she couldn’t see the evidence in her own case and couldn’t effectively prepare for her hearing.
“I felt as though, essentially, the odds were against me, and it seems like the system was designed to keep those odds against me,” said the woman, who is not being identified because she was the victim in a sexual assault investigation.
The odds were, in fact, against her, according to Kel O’Hara, an attorney with Equal Rights Advocates who said students who aren’t permitted to see evidence in their own cases would be at a disadvantage at the Title IX hearing.
“You can go forward, but you don't have any sort of meaningful opportunity to review and respond to the other side's case. So if there was information in there that was misleading or inaccurate or otherwise harmful in those ways,” the student wouldn’t have the chance to prepare for it before the hearing, O’Hara said.
The student ran the document by Dunn, whom she had hired, and Dunn told her not to sign it, saying it violates both Title IX and the Clery Act. Dunn cited this example as one of the worst she’s seen because if the woman violated the agreement, even accidentally, it would be a mark against her credibility in the hearing about her alleged assault.
“So it wouldn't be about the merits of whether she was abused,” Dunn said. “It would be about her compliance with this agreement. And it outraged me.”
A university spokesperson said Villanova later changed its standard agreement and removed the language about consequences as part of an “ongoing evaluation of our procedures to recognize best practices for the parties involved.”
Putting conditions on accusers’ access to evidence was uncovered elsewhere too. Public records requests filed by The Brechner Center for Freedom of Information revealed similar language at Rutgers University and the University of Wisconsin-Milwaukee, where contracts required students to sign an agreement, explicitly stating that they can share the evidence only with their hearing advisers and no one else.
Such terms would appear to prevent students from taking the information to the police if they wished to pursue criminal charges or using the evidence in a lawsuit. Officials at Villanova and Rutgers said the information could be used for those purposes.
But that’s not stated in the contract. And it wasn’t clear to the students told to sign these documents. The confusion highlights a discrepancy between what these contracts say versus how they might be enforced. And it bolsters the argument of advocates who say students are being wrongly intimidated by these agreements.
Attorney Brett Sokolow is the president of the Association of Title IX Administrators and consults for universities on Title IX policy. Asked by the Brechner Center to review these agreements, he called the language “poor” and said they appear to be in violation of federal law.
“It didn't make any damn sense to me,” Sokolow said. “And I think the bottom line is that if you are requiring students to jump through any hoop in order to get access to information they are entitled to, then you are engaged in a problematic practice. … Those schools are, in my mind, engaged in practices that I would discourage and that I think are potentially in violation of federal law.”
At some schools that require contracts, another form of intimidation comes from nondisclosure agreements, or NDAs, that seek to limit what students can say about the process.
After Steven Stakias – whose name is being used with his permission – reported that a fraternity brother raped him in the fall 2021 semester, he was required to sign a five-page agreement that he wouldn’t discuss the case before he could review evidence.
While the federal student privacy act – the Family Education Rights and Privacy Act, known as FERPA – says some student information must remain confidential during this process, Baltimore-based attorney Oana Brooks said York College’s NDA went far beyond what the law requires.
“It serves as a gag order or silencing of some kind,” said Brooks, who represents Stakias but typically represents the accused in these types of cases. “They go, in my opinion, multiple steps further. To me, it's a threat. I don't know how else to say it other than that.”
After signing the document, Stakias told his side of the story on a podcast. Though he didn’t name the man he was accusing, the interview gave the attorney for the accused an opening to ask the school to take disciplinary action against him for violating the NDA.
Stakias withdrew from York College, so far avoiding any discipline.
“The whole reason I got a lawyer was because I needed to protect myself,” he said. “They told my adviser that they could take civil action against me.”
York College officials said the NDA is intended “to protect the privacy of our students and to prevent abuse of the evidence-gathering requirements of the Title IX process.”
Officials also said the school doesn’t prohibit students from discussing their Title IX complaints. Yet lawyers who’ve reviewed the documents said that isn’t clear from their language, and Stakias said he was threatened with disciplinary action when he discussed his claims.
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At the University of Alabama at Birmingham, school officials said the confidentiality guaranteed by their nondisclosure agreement “makes students more comfortable in reporting” sexual misconduct.
A statement from the school distinguished between allegations and evidence, saying that students are permitted to discuss their allegations but not share evidence.
Once again, that’s not clear from the actual document, which says in part:
“Please sign the statement below indicating your agreement to keep all matters relating to the Title IX process confidential.” Later it states: “I agree to keep confidential all matters relating to the Title IX process, and I further agree not to discuss or disclose any information about the Title IX process itself, nor any testimony or documents received in connection with the Title IX process.”
A student who alleged partner violence during their freshman year said the school wanted a signature on the NDA before the student would be allowed to see interview transcripts and the investigative report that would be used at the Title IX hearing. The consequence for violating it: “disciplinary action up to and including … expulsion from the university.”
“Immediately, it kind of broke a little bit of trust that I had with my university,” the student said. “Obviously, I'm not super legally informed. I'm a sophomore in college. But I've heard about NDAs through celebrity drama and things. And immediately I think I was concerned that it was just going to be another way to shut me up and to silence me.”
Sokolow, who reviewed the document, said this example was particularly egregious because the University of Alabama at Birmingham is a public institution, and students there are afforded extra rights under the First Amendment.
“That's called a prior restraint in First Amendment law,” Sokolow said. “You're talking about a public institution restraining the free speech rights of its students. And under First Amendment analysis it's prior restraint, which causes a chilling effect, which is presumptively unconstitutional.”
‘They found a way around the law’
While it’s hard to quantify how widespread this practice has become, it doesn’t exist at every school. Of about 25 policies that were obtained by public records requests, three had questionable language. Attorneys shared eight more cases they encountered in their work.
Among the schools that don’t require a contract is Pennsylvania’s Muhlenberg College, where Title IX coordinator Jennifer Storm said students are given a notice that the documentation they’re receiving is confidential because it contains information about another student. Storm said a fair process doesn’t depend on language that limits an accuser’s rights or threatens consequences.
“We don't deem it necessary, and that's why it's not reflective in our process,” Storm said.
Sokolow called the contracts “a solution in search of a problem,” noting that among thousands of Title IX cases he could think of fewer than five where information leaked out that was problematic. He asked, “Why would you create such a draconian NDA-based restriction on a behavior that happens so very rarely?”
The extra demands on students who try to report discrimination or sexual misconduct is more than just an inconvenience, said Donna Greco, the policy director for the Pennsylvania Coalition Against Rape. They can also affect how many students come forward in the first place, which is already low.
“Around 80% of campus sexual assaults are never reported to the school, so those who do come forward should be supported and believed and shouldn't be forced to sign away their rights,” Greco said. “That is not the spirit or purpose of Title IX, and … it doesn't serve victims. It doesn't serve the larger community either.”
Title IX has long been a political football, with guidance shifting based on who occupies the White House. During the Trump Administration, Education Secretary Betsy DeVos created about 2,000 pages of new regulations, which victim advocates argued over-legalized a process that isn’t supposed to resemble a courtroom.
The new regulations were influenced by a wave of complaints by those accused of sexual misconduct, who said their due process was being violated in these campus hearings. At the time, there was no set nationwide standard in place for how schools investigated and adjudicated allegations.
Dunn said the Trump-era regulations created an opening for these waivers.
“I think schools have been emboldened, right? There is this increasingly legalized process, so why not add one more agreement that helps them?” Dunn said. “Unfortunately, the Trump administration really emboldened a lot of schools to go out, experiment and to try.”
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Instead of working to fix the problems with these campus tribunals, schools instead are becoming more secretive, she said.
“It's almost like they found a way around the law,” Dunn said. “If we can trick people to give away their rights without really knowing it and appreciating it, well, then we won't have this bad PR if that outcome that wasn't very favorable is shared publicly.”
The Title IX process is secret by design. It was built that way to protect victims who wouldn’t otherwise come forward and participate in an open process.
But that secrecy can come at a cost.
There are dozens of examples over the years of schools abusing privacy laws at the expense of the students that the laws are meant to protect.
A 2020 Brechner Center investigation found that FERPA was cited as the reason for keeping certain allegations silent in more than two dozen cases of misconduct at both K-12 and university institutions.
'Businesses like every other'
While Title IX is best known for the impact it’s had on American colleges, the law applies to all schools and education programs. High schools often escape the scrutiny for how they handle these investigations, but in Colleyville, Texas, one was found to be presenting a “stay away” agreement that bars alleged victims from being in the same space as those they accuse, even if by accident.
“At every step of the way, it was so confusing, convoluted,” said a teenage girl who was presented with the contract. “Nothing was straightforward. The language was way out of our vocabulary.”
In an official statement, the Colleyville Heritage High School said contradictory things about the agreement, first stating that it’s unenforceable: “A Stay Away agreement is just that, an agreement between parties as to a course of action, not an order.”
Yet the statement also said the contract could result in disciplinary action, saying, “parties must comply with its terms and be held accountable to those terms.”
This left the family of the teenage girl feeling intimidated, likening the school to more of an adversary than an advocate.
“It was fighting a battle on two fronts,” the girl said.
“I have a completely different outlook on our school system because of this incident,” the girl’s mother said. “I don't feel like at any point they were here to help us and to protect the students, not at all.”
The teen accuser, who is represented by Dunn, refused to sign the agreement. Shortly afterward, her case ended with the school finding that her allegations didn’t have an impact on her education – which is the right that Title IX protects in sexual misconduct cases.
All of the victims interviewed for this story said they went into the Title IX process hopeful their school would be fair to them. All of them said they ended up feeling betrayed by the institutions they previously admired.
“The NDA was obviously a big shock to me and a big letdown,” the University of Alabama at Birmingham student said. “UAB is one of the more, I think, progressive colleges in the area. However, I think at the end of the day, UAB is still an institution and they still run as an institution. So in some ways, you are just a number to them.”
The Villanova student said she separates the institution from its people.
“My hopes are to be able to look back in 20 years and be proud of myself for this and be proud to stick up for myself,” she said. “I wouldn't be proud of the way Villanova … handled it whatsoever, but I would be proud of the way people supported me. Proud of the community that Villanova creates as an institution, but not necessarily proud of the school and what it tried to impose on me.”
Stakias, who is now pursuing a degree elsewhere, said he’s had to cut out the friends he has at York College of Pennsylvania.
“I try to think about the good times that I had there, but all I can think about is what (the school officials) put me through,” he said. “It sucks that I was assaulted, but I was assaulted all over again by the school.”
Sokolow said that’s precisely the problem with these kinds of contracts.
“The real issue for me is that we're having survivors all over the country facing significant barriers to accessing resolution processes,” he said. “And so any school that would erect one more unnecessary barrier is putting an obstacle between somebody who's experienced harassment or discrimination and their possible remedies, and I'm all about breaking down as many of those barriers as we possibly can.”
In her years of handling these cases, Dunn said she’s come to the conclusion that too many schools no longer aspire to a higher calling as institutions of learning. It’s a sentiment that victims of sexual violence on campus have been expressing for years.
“They have an interest in their institution's reputation, in the numbers of admissions and the ability to attract future students and good faculty. They have a dog in the fight,” Dunn said. “Unfortunately, these are businesses like every other business.”
The Spencer Education Fellowship at Columbia University and The Brechner Center for Freedom of Information provided funding for this reporting. Research was done by Brittany Suszan and Brett Posner-Ferdman at The Brechner Center for Freedom of Information.
Sara Ganim is the host of the Why Don’t We Know podcast, which explores government secrecy. An episode of the podcast on this topic was recorded at SXSW EDU in Austin, Texas, and is available for listening wherever you get your podcasts.
This article originally appeared on USA TODAY: Schools forcing students to waive federal rights in some rape cases
