Tip of the Week
Here is another installment in our recent Q&A Series:
Q: Dear ATIXA,
Please share thoughts or information as to why schools should or should not use/require parties to sign NDA’s (non-disclosure agreements) when reviewing the evidence and the formal investigation report. If ATIXA has any current written guidance on this topic or caselaw that I could share with counsel, please let me know. Thank you.
A: ATIXA does not support use of NDA’s except for information shared with advisors during the resolution process. NDAs for parties are addressed in the 2020 Title Regulations, but the pertinent section in the preamble is convoluted:
Additionally, some recipients may have non-disclosure agreements that comply with other laws, and these final regulations neither require nor prohibit such non-disclosure agreements. The final regulations provide that the recipient cannot restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence in § 106.45(b)(5)(iii).
Thus, your proposed NDA may or may not run afoul of the regulations, depending on what it covers. Per the regulations, an NDA must be fairly narrowly tailored to allow for the discussion and inquiry necessary for complaint resolution. And with respect to enforcing an NDA, it’s not always clear what the source of information is originally, or there may be multiple sources, some of which fall within the NDA and others which fall outside of it.
Further, at a public university, you risk creating a chilling effect on First Amendment rights by putting something too vague in place. Also, consider the potential adverse publicity of gagging parties. While the idea may be the well-intentioned protection of highly sensitive and confidential information, the public sentiment may be that a college or school is attempting to cover up and silence parties to complaints.
And, if one of those parties decides to ignore the NDA and speak out, then schools could be in the awkward position of trying to discipline an activist for violating the terms of an NDA. Can you imagine Aly Raisman not being able to testify in court against Larry Nassar at Michigan State because of some internal NDA? We’re not suggesting that was the case, or that Raisman brought an internal complaint at MSU, but just trying to demonstrate how the optics of an NDA might raise problematic implications.
Q: Would it change your mind if the NDA was specific to evidence shared by the other party and witnesses? If not, why?
A: I think the Trump/DeVos administration’s tolerance of NDAs is unique, as evinced in the regulations, and differs in tone from previous administrations. If a school or college adopts NDAs now, it could likely find a shift in tone soon from the Biden administration, disfavoring gag orders of any kind. The regulations’ preamble discussion of NDAs does not have the force and effect of law, and Biden’s Department of Education may walk it back. The effort to narrowly tailor your NDA in this follow-up question may allow it to survive scrutiny, but the restriction covering only evidence shared by the other party or witnesses may be a distinction that is neither entirely valid nor enforceable.
Look at the great example of a recent, well-publicized case college case. Witness video proved the alleged sexual assault was unmistakably consensual sex. Had the respondent not have been able to disclose that video to key administrators and their own advisors and attorneys to discuss it, publicize it, and use it in litigation, there would have been a grave injustice. The expulsion was overturned. It is unfortunate that the alleged victim was subject to some circulation of a very private video, yes, but it never went public.
Could the terms of your proposed NDA have prevented the respondent from sharing the video obtained from the witness? You might narrowly tailor the NDA to expressly allow disclosures to advisors, administrators, police, courts, attorneys, etc., so that what is really prohibited is public disclosure, but the subsequent prosecution or litigation might be public. Then what? Can you narrowly tailor an NDA enough to survive it being void for vagueness? In narrowly tailoring it do you create so many exceptions that you wonder what you’re trying to prevent in the first place? Will you engender litigation by those who seek to break the NDA by claiming it was a contract of adhesion imposed upon them without negotiation?
Those in the field remember Clery Act and OCR resolutions with Georgetown University and UVA, and the public controversy and publicity around them, all to keep what from coming out? There were no serious leaks of information that prompted the need to impose gag orders or NDAs. Many corporations are now eschewing NDAs because of the nefarious tones they’ve taken on with respect to #MeToo. Many Hollywood actresses were gagged by NDAs for years and unable to risk speaking out to do away with the casting couch once and for all, for example.
In ATIXA’s model Title IX policies and procedures, there is a clear statement that what is shared with parties or witnesses during the investigation process is confidential. We’ve not gone the further step of making disclosure an explicit policy violation, or of imposing NDAs. It’s worked well for over a decade. Some of our clients do have a conduct code violation specific to this kind of disclosure, but it is rarely used. The 2011 Dear Colleague Letter on Title IX was in part inspired by the CPI expose of college and university treatment of sexual assault. One part of that article series focused on gag orders. The Student Press Law Center has addressed this topic from the perspective of the free speech implications.
Also, readers may wish to note ATIXA’s 2015 position statement on this topic.