George Washington University law student Dorea K. Batté saw the texts, missed calls, and voicemails pour into her phone by the hundreds. When she blocked the number they were coming from, her stalker found a way to use different numbers to contact her. She kept blocking the numbers; he kept reaching her using new ones. Feeling helpless and overwhelmed and after warning her stalker twice to stop contacting her — to no avail — Batté finally went to her law school’s Title IX office to get help. As a reminder, Title IX is the federal law that prohibits sex discrimination — including sexual harassment — in education.
Batté wasn’t trying to get anyone in trouble; she just wanted the harassment to stop. So when her school offered a non‑disciplinary solution to her Title IX complaint — a mutual no-contact order, where neither student could interact with the other — she gladly accepted.
The order was informal, requiring nothing more than agreement by both parties. It involved no disciplinary proceedings and no disciplinary findings. Batté was assured that the “administrative order” did not go into her academic record or appear otherwise in anything that would show up in a background check. The no-contact order worked: Batté had no further problems with the other student.
Unfortunately, the same can’t be said for Batté’s interactions with GW. After applying for admission to practice as an attorney in 2020, Batté learned the university reported to the D.C. Bar that Batté had a disciplinary record: the no-contact order that she had sought to continue her legal education harassment‑free. Suddenly, Batté’s bar admission was in jeopardy, given the “character and fitness” portion of the process. The university also put a hold on releasing Batté’s transcript.
University administrators declined to fix the problem they created — and one they had promised Batté wouldn’t happen from the start. Instead a GW administrator admitted that she “understood how the complaint started.” Yet she remarkably stood by her bar report, only telling Batté that she was free to “provide whatever explanation you believe to be appropriate to the D.C. Bar.” Batté was shocked that her law school had effectively recast her as a wrongdoer for doing nothing more than trying to continue her education free from harassment.
Only when the ACLU of the District of Columbia got involved did GW finally write to the bar to clarify that a no-contact order is not a “disciplinary” action — not for students accused of wrongdoing, who have yet to go through a fair investigative process, and most certainly not for complainants, who have been accused of no wrongdoing at all.
Despite this seemingly happy ending, Batté’s experience continues to present a cautionary tale. When the ACLU-D.C. asked GW to reform its reporting process to prevent future students from suffering adverse consequences for invoking Title IX, the school would not commit. In a recent story about Batté’s experience, a GW spokesperson told a reporter, “Mutual no-contact orders are not disciplinary actions, they are not reported to third parties as disciplinary actions, and they are not listed as a sanction on university conduct records.” This was news to us.
It is unclear whether this isolated statement, given in response to a media request and unaccompanied by any formal policy document, represents a concrete change in GW policy or an empty talking point in response to negative publicity. Accordingly, future Title IX complainants or respondents could suffer the same consequences for agreeing to what they were led to believe was a non-disciplinary course of action. There is no telling how many students at GW — and at an untold number of other schools — are still saddled with undeserved disciplinary records for trying to have a harassment-free education.
The new Title IX regulations released by the U.S. Department of Education in May of this year — which went into effect last month — place a heavy emphasis on the availability of supportive measures for complainants and respondents alike. The rule touts mutual no-contact orders as one possible supportive measure that, depending on the circumstances, may be used as an accommodation that does not punish the respondent. But if schools use mutual no-contact orders to punish the complaining student, it will not only fail as an accommodation; it will also chill complainants from reporting harassment at all.
While the ACLU and ACLU-D.C. take issue with several key parts of the new rule — and in fact the ACLU has brought a challenge to those provisions in court — we agree with the DOE that access to supportive measures is of utmost importance for many survivors. However, these supportive measures can’t be used to penalize complainants for invoking their civil rights under Title IX — which is exactly what GW’s policy does.
Policies and practices like GW’s serve a retaliatory function that flies in the face of the purpose of Title IX — a law meant to ensure students’ equal access to education, regardless of their sex. Protocols like GW’s chill students from reporting sexual harassment. In turn, survivors who are unable to access needed accommodations and formal investigatory mechanisms suffer psychologically and academically.
The fact that schools punish survivors for experiencing and reporting sexual harassment and assault is tragically
not new. The problem is particularly common and devastating for Black women and girls, who are more likely than their white peers to be punished when seeking school support. Because of insidious racial and sex stereotypes, school administrators more often minimize Black survivors’ harms and assign them blame for the misconduct reported. These reactions exacerbate the already severe underreporting of gender-based harassment and violence.
Parts of the new Title IX regulations already serve as major deterrents from seeking help for students who have experienced sexual harassment and assault. Schools should take care not to impose additional roadblocks to students’ access to education by recasting seeking assistance as misconduct.
GW and all schools should publicly commit and memorialize in writing that they will not report voluntary mutual no-contact orders as “disciplinary action,” or otherwise penalize their students for using their Title IX resources to receive an education free from sex discrimination.
Published September 29, 2020 at 10:59PM
via ACLU https://ift.tt/2HKJMdT
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