College Confidentiality Policies Have Chilling Effect on Student Rights

If you file a sexual misconduct complaint with the College, your complaint will be submitted to Susie Mitton Shannon, Interim Dean of Student Conduct and Deputy Title IX Coordinator, who will meet with you to explain the College’s policies and procedures and inform you of your rights and responsibilities. In this meeting, Dean Mitton Shannon will tell you that you are not allowed to discuss the matter or the investigation without first receiving her permission. Failure to comply could result in disciplinary sanctions, depending on the severity of the offense and your previous conduct history.

If the College determines that a formal investigation is necessary, Dean Mitton Shannon or her designee will choose an independent investigator to gather information and prepare an official report for the Hearing Board. The investigator will interview you, as well as the respondent and any relevant witnesses named by you and the respondent. But before doing so, many investigators employed by the College will first require you to sign an “acknowledgement agreement.” The document will certify your “acknowledgement” that the investigation and its subject matter are confidential and your agreement not to engage in any unauthorized discussion. It will inform you that violating the agreement could expose you or the College to liability.

If your case makes it to a hearing board, the chairperson of the board—typically the Dean of Students—will inform you and the respondent that the proceedings are confidential and that information received at the hearing should not be shared outside the hearing room, supposedly at risk of violating the Family Education Rights and Privacy Act (FERPA).

According to Dean Mitton Shannon, these restrictions are necessary to ensure a “nonbiased and accessible process,” but similar policies and agreements at other colleges and universities have fallen under controversy and legal scrutiny. In fact, they could even violate the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, according to the Department of Education’s Office for Civil Rights (OCR).

The 2011 “Dear Colleague Letter” released by the OCR to clarify educational institutions’ legal obligations and responsibilities in cases of sexual misconduct prohibits the use of nondisclosure policies that could prevent the sharing of information required by the Clery Act or interfere with students’ rights to report crimes to law enforcement officers. In several rulings, the OCR has said that policies that put limits on students’ abilities to discuss disciplinary proceedings or their outcomes could violate students’ rights under the Clery Act.

According to Title IX Coordinator Laurie Frankl, the College reports all cases of sexual misconduct that could constitute a criminal offense to the Amherst College Police Department and does not make the investigation of sexual misconduct reports contingent on reporters’ willingness to sign acknowledgement agreements.

However, the ambiguous language and scope of the College’s confidentiality policies and the acknowledgement agreements used by some investigators put the College in legally uncertain territory and could have a chilling effect on students’ ability to exercise their rights under Title IX and the Clery Act, said William Newman, legal director of the American Civil Liberties Union’s Western Massachusetts Legal Office.

For instance, the sexual misconduct policy available online only includes information about the confidentiality of the disciplinary hearing itself, and it makes no mention of the confidentiality of the investigation or the agreements used by independent investigators. Students are only informed of these policies once an investigation has commenced.

Even when the College’s policies are explicitly stated, they often add to the confusion. The official statement of the College’s policies offered by Dean Mitton Shannon in response to inquiries by AC Voice states that “any conduct proceedings must be confidential,” but also says that “generally speaking, students are permitted to talk about their story,” leaving it up in the air what aspects of the investigation are confidential. Dean Mitton Shannon did not respond to repeated requests for clarification on this point.

Additionally, a copy of an acknowledgement agreement provided to AC Voice by Frankl contains a blanket statement on confidentiality that, according to Newman, would be a clear violation of students’ rights if applied as written:

“I understand that the matter under investigation and the investigation itself are confidential matters and that I should not discuss either of them with anyone without first checking with the Investigator. I understand that any unauthorized discussion by me could compromise the investigation or could violate someone’s privacy and expose me and the College to liability.”

According to Newman, the language of this agreement implies that students reporting sexual misconduct would be prohibited from speaking to their doctors, lawyers, parents, religious advisors, or anyone else about the investigation or its subject matter (e.g. a sexual assault) without prior authorization. This is a restriction on students’ and survivors’ rights that the investigator lacks the authority to make.

Moreover, the agreements do not define any time limits on when the confidentiality agreement is binding — as it is written the agreement seems to apply indefinitely and would very likely be a violation of students’ rights under the Clery Act. If either party to an investigation feels that their rights have been violated, they need to have the right to speak publicly, Newman said.

Additionally, the College’s reference to FERPA and privacy law to justify their use of confidentiality policies suggests a deeper ignorance of the law since students are not bound by FERPA and the disclosure of information during sexual misconduct proceedings does not require FERPA protections. The Dear Colleague Letter states that:

“Compliance [with the Clery Act]…does not constitute a violation of FERPA…the FERPA limitations on redisclosure of information do not apply to information that postsecondary institutions are required to disclose under the Clery Act.”

In an interview with The Swarthmore Daily Gazette about a similar policy at Swarthmore College, Adam Goldstein, legal director of the Student Press Law Center, said that clauses requiring students to keep confidentiality violate the rights of both accuser and accused since the Clery Act protects both parties’ ability to share their stories, even if they include details about what was said during a hearing or questions they were asked during the investigation.

In fact, several colleges and universities have been investigated by the OCR for similar policies, and others have abandoned their nondisclosure rules after student protests. A July 2004 ruling by the Department of Education required Georgetown University to end the use of nondisclosure agreements in sexual misconduct proceedings, and last year the Department of Education initiated an investigation of the University of North Carolina-Chapel Hill after it used a nondisclosure agreement to justify retaliation against a student who filed a federal complaint against the university. Additionally, schools such as Otterbein University and Yale University stopped using nondisclosure agreements last year after students publicly complained and threatened legal action.

Nica Siegel ’14, student-activist and AAS Senator, said that, regardless of their legality, the College’s policies negatively impacted survivors’ rights and argued that the need for privacy did not justify such broad demands for confidentiality. “As a matter of mental health, survivors must have the right to seek out support from various resources on campus, including other students, while their investigation is under way.  This includes having the right to discuss details of their case,” Siegel said.

While the College claims that its policy does not prevent students from receiving support or speaking out if they feel their rights are being violated, Siegel said that the language of the College’s policies still had an unwarranted silencing effect on students. Newman agreed, saying that although the College’s policies are legally ambiguous, they could still have a significant chilling effect on students’ abilities to exercise their legal rights and protections.

“If I was a college administration I would be terribly, terribly concerned that my students were being given this document,” Newman said.