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, 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.
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.
