BERWYN, PA — ATIXA issues a 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 go 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.
Source: ATIXA Central Offices, 1109 Lancaster Avenue, Berwyn PA 19312
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