Fifty years into Title IX, achieving equitable opportunity for education remains a huge challenge. Laws are passed but then not uniformly enforced. Policies are clarified only to discover some school administrations learn how to strategically skirt mandates and undermine students’ rights.
Some schools are bullying students who report sexual assault into waiving certain rights before they will proceed with internal misconduct hearings.
From a USA Today report:
It’s a practice that runs afoul of the law, according to several experts … 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.
Demanding Justice for Student Survivors
WLP and advocates for survivors from across the country are calling on the U.S. Department of Education’s Office of Civil Rights (OCR) to conduct a full investigation into reports that schools are coercing students to sign chilling nondisclosure agreements before addressing complaints of sexual misconduct and take action to stop them.
We proudly joined an effort led by Equal Rights Advocates and L.L. Dunn Law Firm, PLLC and signed a letter to OCR calling for an investigation into this practice of depriving students of their rights through overly broad confidentiality contracts.
From the letter:
These agreements — conditioning access to a school’s grievance process on silence and forfeiture of other rights or due process — are coercive, unconscionable, and retaliatory. The agreements require, for example, parties and their advisors to agree to not disclose or use any information from or about the grievance process, including after its conclusion, and to accept the threat of expulsion or even civil litigation if they should fail to fully comply with all of the school’s chosen terms, no matter how unconscionable.
We urge OCR to prohibit schools receiving federal funds from coercing students to sign confidentiality contracts as a condition of addressing complaints, among other recommendations.
Pennsylvania Schools as Examples of Harmful Practice
Three out of eight examples of this harmful practice included in the letter originated in Pennsylvania schools:
- In 2021, Villanova University required the parties involved in the Title IX grievance process to sign a document that sought to impose unconscionable terms on the parties, such that it threatened to obstruct a fair, prompt, impartial, and equitable adjudication of the student-complainant’s sexual assault report.
- In February 2022 at the University of Pittsburgh, “Jane Doe” reported that a fellow student sexually assaulted her on campus. Jane was deprived of a Title IX advisor and allowed the alleged assailant to graduate before offering the student and her privately retained attorney-advisor to sign a confidentiality contract that contained unethical provisions that violate attorney-client privilege.
- In 2022, York College of Pennsylvania required parties and their advisors in a Title IX process to sign an extensive nondisclosure agreement (NDA) as a precondition to accessing and reviewing all evidence collected during the investigation. The NDA contained unreasonable and unnecessarily punitive enforcement mechanisms that created undue legal liability for students while buffering the institution.
We will keep you posted on the response.
Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing and defending the rights of women, girls, and LGBTQ+ people in Pennsylvania and beyond. As a non-profit organization, we can not do this work without you. Please consider supporting our work.
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