BERWYN, Pa., June 5, 2018 /PRNewswire/ -- ATIXA issues this position statement to express its significant concerns regarding the inappropriate practice by colleges and universities of either explicitly or implicitly silencing parties – and their advisors – involved in campus sexual misconduct proceedings. Through ATIXA's leadership in the field, the executive team has witnessed a continued use of gag orders and related policy provisions that seek to silence these individuals. This practice is troubling because it fails to respect the free speech rights of the parties and their advisors and runs contrary to regulations and guidance put forth by both the U.S. Department of Education (ED) and the National Labor Relations Board (NLRB).
The ability to discuss and critique the resolution process as it unfolds is an essential right of the parties to Title IX and related resolution proceedings. ATIXA firmly believes in robust free speech protections, especially in the context of higher education, and is deeply concerned with the prevalence of policies and/or practices aimed at limiting these protections and rights of the parties – or their advisors – involved in civil rights resolution proceedings. It is ironic to lose one's civil rights by engaging in a process designed to protect and defend them.
While trepidation regarding sensitive communications is understandable, and schools must maintain the privacy of resolution proceedings, schools goes too far when they gag the parties from sharing their experiences, their truths, or even their critique of the resolution process. ATIXA is aware of cases in which the overzealous use of confidentiality provisions has prevented students from accessing advisors and hiring attorneys. Privacy, as envisioned by OCR,1 is something that must be maintained by the institution, not imposed upon the parties. As ATIXA's mission is to continue to improve upon the manner in which sexual misconduct is addressed in higher education, ATIXA exhorts its members to maintain the highest standards of practice and encourages members to desist from utilizing any such speech-constraining policies or practices in their sexual misconduct proceedings.
ATIXA is also mindful of the larger society in which schools and colleges operate, and the impact that #MeToo is having both within schools and without. More and more often, confidentiality agreements seeking to bind parties are becoming disfavored, controversial, and subject to litigation, especially when wielded by the powerful to silence the powerless.
This position statement has been ratified by the ATIXA Board of Advisors, June 1, 2018.
Founded in 2011, ATIXA is the nation's only membership association dedicated solely to compliance with Title IX and the support of more than 3,500 administrator members who hold Title IX responsibilities in schools and colleges. ATIXA is the leading provider of Title IX training and certification in the U.S., having certified more than 3,000 Title IX Coordinators and more than 8,000 Title IX investigators since 2011. ATIXA releases position statements on matters of import to its members and the field, as authorized by the ATIXA Board of Advisors. For more information, visit www.atixa.org.
1OCR refers to Title IX "confidentiality", but there is no independent or statutory source for this protection in Title IX. As such, when OCR talks about "confidentiality," it seems to be referencing or even bootstrapping external sources of privacy protections, rather than asserting something inherent in Title IX. "Confidentiality" then in the OCR sense is not a legal status, and no privilege attaches. While confidentiality is a highly protected status under law subject only to court-made and statutory exceptions, privacy is a lower level of protection allowing internal sharing on a need-to-know basis and under whatever exceptions are created by applicable privacy protections. Thus, OCR seems to have incorporated the privacy imposed by statutes like FERPA and state employee record privacy laws, which are the only sources for such protections in law.
SOURCE Association of Title IX Administrators (ATIXA)