Civil Liberties

Universities Think Title IX Also Requires Them to Impose Gag Orders on Rape Victims

Not fair for accusers or the accused.



If one needs any additional evidence that university rape adjudication processes are farcical travesties of justice—for both accused students and accusers—look no further than this Huffington Post report on gag orders as a tool for administrators to silence alleged victims.

HuffPost Senior Editor Tyler Kingkade compiled numerous examples of students at different colleges who reported sexual assault to the administration only to be told they were prohibited from speaking—in public or private—about their troubles:

Yenli Wong, a recent Pomona graduate, said that during her senior year she had wanted to write a blog piece for HuffPost about being sexually assaulted, but didn't want to get in trouble for breaking the school's confidentiality rules about the investigation that had taken place. Wong had no intention of revealing her assailant's name—she just wanted to tell her story. But the school had previously told her that breaking the gag order would open her up to disciplinary charges.

In an email, Pomona Dean Miriam Feldblum told Wong that her blog post could "refer to specific relevant policy sections in the Handbook, such as 'non-consensual sexual contact,'" but could not disclose details from the "alleged policy violation statement."

Wong says Feldblum's response was nonsensical to her, because it didn't explain whether the blog post would be considered a violation of the gag order.

"I felt very trapped and was extremely worried that the college might punish me if I spoke out about what happened to me," Wong said.

Pomona went further than that: Without prompting, the school warned Wong's boyfriend, Julien Breistroff, that if he disclosed information about the case, he, too, would be opened up to disciplinary charges, according to emails provided to HuffPost. 

Free speech is indeed imperiled at Pomona College when administrators don't merely prevent participants in a dispute from talking about their ordeal—the also try to limit the conversation by going after anyone who might have knowledge of it.

In another example—this one at Columbia University—neighbors overheard a couple arguing, and reported this to the university. Administrators then imposed a no-contact order between the two, even though the woman (who later admitted she was in an abusive relationship) had refused to cooperate in any kind of investigation or formally accuse her boyfriend.

Why are universities censoring their students and meddling in private affairs when they haven't been invited to do so? The culprit is the same federal gender equality law that makes the sexual assault adjudication process a Kafka-esque hell for accused students: Title IX.

Since no one seems to have a very good understanding of what Title IX actually requires—including and especially the Education Department's Office for Civil Rights, the agency that enforces the law—universities live in perpetual fear of losing federal funding because they accidentally violated it. To safeguard themselves against the legal and financial ramifications of ending up on OCR's bad side, many administrators interpret Title IX as broadly as possible—more broadly than OCR, in fact—to the detriment of due process and free speech rights for students and faculty.  This is the kind of regulatory environment that produces witch hunts against people like Northwestern University's Laura Kipnis; it also led City University of New York officials to erroneously conclude that they had to police the use of gendered pronouns.

The gag orders are a byproduct of Title IX compliance as well:

Colby Bruno, senior legal counsel at the Victim Rights Law Center in Boston, says the way colleges are applying no-contact orders, placing an equal onus on both students, is misguided.

"They think if we don't do this to both people, then we are in violation of [our obligations under] Title IX to be equitable," he said. "That's not the case."

Bruno's comment suggests to me that he would prefer, or believes that Title IX requires, one-sided gag orders. This strikes me as much worse: shouldn't an accused student have the same right to speak his mind as his accuser does?

The stark reality that anti-rape activists have trouble admitting is this: universities will never be on their side. They are not in the business of dispensing justice; they are in the business of protecting their brand and financial resources, which means insulating themselves from the consequences of crossing the feds. As a result, compliance—rather than justice, fairness, or due process—is the paramount goal of the campus adjudication process.

Neither accusers nor the accused are well-served by such an environment. But instead of reforming aspects of the process—gag orders, for instance—to be even more one-sided, universities should be stripped of their obligation to handle rape disputes entirely. The criminal justice system, flawed though it may be, is still a better arbiter than Columbia University or Pomona College.