Back when I was a freshman in college many years ago, something happened. This something involved someone who was a member of my college’s faculty and me, and it resulted in my filing a complaint relating to allegations of sexual assault. But now, 15 years later, I am compelled to rely on those kinds of ambiguous nouns -- something and someone -- in lieu of specifics. At the behest of college administrators and representatives, I signed a nondisclosure agreement that prevents me from sharing anything more specific about that something and that someone.
At the time, I understood my silence to be a necessary cost levied in exchange for protection and support. I brought my complaint to a trusted faculty member who, in turn, forwarded it to the appropriate administrator. That administrator then told me that I had two options. I could take my complaint to the police, thereby exposing myself to a public trial, newspaper reporters’ inquiries and the scrutiny of our entire college-town community. Or I could let the college handle the investigation, as long as I was willing to aid that investigation by keeping contractually quiet.
I was 18 years old, living more than 1,000 miles from home. Save for that one trusted faculty member, I had not told anyone about the something, not even my roommate or my parents. So I agreed to a private, internal investigation and signed the nondisclosure agreement -- before speaking to a lawyer, before receiving any impartial advice and before having the opportunity to tell my story to anyone who might have been in a position to offer me support.
What Are NDAs?
Nondisclosure agreements -- or NDAs -- are legal agreements that are employed with the aim of protecting sensitive information. In business, “sensitive information” may amount to trade secrets or specific details about a product. In higher education, colleges and universities have historically turned to NDAs when investigating allegations of sexual violence or misconduct.
NDAs typically mandate that both parties involved in the complaint remain silent so as to avoid impeding a college’s investigation (which sometimes includes the gathering of witness testimony). And in order to further discourage those involved from speaking, NDAs often specify that financial penalties and personal liability are likely to result if either party breaks the agreement. (See, for example, The Washington Post’s coverage of the subject in the context of former presidential candidate Herman Cain.)
But in recent years, critics of the practice have pointed out that such confidentiality agreements stifle student speech and prevent victims -- be they the accusers or the accused -- from speaking out and sharing their sides of the story. What’s more, as a 2014 Inside Higher Ed article explains, NDAs place comprehensive bans on speech that extend beyond investigative proceedings and remain in effect long after the details of a case have gone public.
That means that victims of sexual violence are unable to shape the narrative that gets told and retold about them -- instead, they are held hostage by the whims of gossip and hearsay. This situation has prompted some people to ask whether there might be such a thing as too much confidentiality, since, as one expert explains in the Inside Higher Ed article, “Colleges and universities rarely if ever intervene to correct the public record -- even if they were to obtain the consent of both parties.”
Citing those same concerns, in addition to mounting public pressure, some colleges and universities have recently moved to discontinue the practice of requiring NDAs for those people wishing to file complaints of sexual violence or misconduct. American University, for instance, announced last year that it would no longer require students to sign them when filing complaints of misconduct against other students.
But as a more recent series of articles in The Guardian points out, NDAs are particularly common -- and thus particularly pernicious -- where student complaints against faculty or staff members are concerned. In such cases, NDAs “allow alleged perpetrators to move to other institutions where they could offend again,” thus “masking” the very prevalence of issues of harassment, violence or misconduct -- all in the name of confidentiality.
What to Know and What to Do
What all higher education professionals must understand, then, is that such practices governing confidentiality are still very much the norm today. Most institutions still rely on them, which is why it is important that faculty and staff members read and acquaint themselves with institutional policies regarding confidentiality and voluntary disclosure. But, even more important, they need to take an active role in communicating their understandings of those policies to students.
I am not saying that folks in higher education need to memorize their campus’s policies and approach all interactions armed with chapter and verse. Rather, now a faculty member myself, I am arguing in favor of a heightened awareness that may permit university professionals to engage candidly and responsibly with student victims. If a student approaches you with the expectation of confidentiality, you need to inform that person of your ability to listen and, perhaps, act in confidence.
For example, if you hail from one of the many professional disciplines that make you subject to mandatory reporting laws (like law, medicine or social work), or if you serve in the capacity of a campus security authority -- which, under Title IX, may also require you to report -- you need to be honest in explaining that you may be unable to comply with a student’s wishes regarding confidentiality. A colleague at my institution’s law school recently told me that she was thinking of putting a sign on her door to declare her status as a mandatory reporter so that students would be able to consider their options before approaching her. Similarly, if you know that official student complaints on your campus are likely to be met with secrecy in the form of compulsory nondisclosure agreements, you must be up front and explain as much to a student beforehand.
Here’s why a willingness to be both honest and informed matters: what followed my decision to sign that NDA some 15 years ago were, frankly, the worst four months of my life. I was removed from the course that I was taking with the faculty member in question and instead enrolled in an independent study course, conducted by another faculty adviser who had no experience in the topic and little direct interest in overseeing my studies anyway.
Meanwhile, my absence in the class had not gone unnoticed, and rumors proliferated -- rumors that I was contractually bound to accept with good grace since I was not allowed to talk about what had happened. The administrator who had dealt with my case had warned me that my violating the NDA “could compromise the investigation or could violate someone’s privacy and expose me and the college to liability.” Those were not my college administrator’s exact words, but they are the words of confidentiality agreements used by higher education institutions today.
There are alternatives, though. American University, for instance, now favors a confidentiality agreement that includes a First Amendment rights statement. The statement is designed to assure victims that confidentiality is the responsibility of their university but not necessarily required by them.
Preventing sexual violence and misconduct on college campuses requires a sincere commitment to acknowledging that sexual violence and misconduct do indeed happen -- that they have been happening for some time now, that they are happening right now. Nondisclosure and confidentiality agreements have historically helped to keep us, as university professionals, from acknowledging that. Yet in order to imagine better, fairer alternatives to NDAs, we must start by facing the facts concerning their ubiquity and prevalence on our own campuses.