“Arbitration.” Did you fall asleep yet? Arbitration sounds like a painful procedure or a boring thing accountants discuss. There’s a reason there’s no “Law and Order: Arbitration Unit.” That said, as a law student and EROC’s Legal Fellow, I believe sharing information about our legal system (even the less glamorous information) can equip survivors to be even better self-advocates, especially after experiencing sexual assault. Understanding arbitration and knowing how it can be an added obstacle for survivors is important for the protection of your right to an education free from sexual violence.
What is arbitration?
Arbitration is a process by which a claim of wrongdoing is addressed outside of the court system. Instead of being heard by a judge or a jury, the case is heard by an arbitrator or an arbitration panel. (These people are hired to decide arbitration cases as their job, but they are NOT judges.) Arbitration is often preferred by large companies or educational institutions, of course, because it allows complaints to be resolved more quickly and with less financial burden. We can think of arbitration as kind of “instead of” a lawsuit. For example, a survivor might go through arbitration as an alternative to filing a lawsuit if their school violates Title IX or Title VI.
What’s wrong with arbitration?
Arbitration itself is not necessarily negative. However, arbitration generally doesn’t protect a survivor’s rights the same way that the court system can. It is important to clarify that at EROC we acknowledge that the legal system as a whole falls short when it comes to protecting survivors while also recognizing that some paths have more protections than others. It’s important to know that arbitration happens privately; this means that the media and the public cannot play a helpful role in holding organizations accountable. This is especially concerning considering that arbitrators are often selected by the institution accused of wrongdoing. The privacy of arbitration makes it difficult to address any bias. Generally, any repayment or recourse survivors receive through arbitration is less than what a survivor might have received in court. If the survivor is unhappy with the outcome, there is usually no option to appeal or take the case to court after arbitration has closed. In fact, in many cases, a survivor is not allowed to speak about the arbitration at all after it is resolved.
For many reasons, some survivors may find resolving a claim through arbitration to be the best option. At EROC we support survivors in choosing their own path to healing and justice, and we believe that arbitration is an option that should remain available to survivors. The problem with arbitration begins when it is not an option but instead mandatory. Some institutions make all students or employees sign agreements that state that any claim will be handled through arbitration; this is called a mandatory arbitration clause. Mandatory arbitration takes away a survivor’s right to seek recourse through the court system.
Who is using mandatory arbitration clauses?
Recently, there has been a wave of employees exposing employers for using mandatory arbitration clauses and demanding that employees retain the right to file a lawsuit. While a majority of educational institutions do not use mandatory arbitration clauses, there is a trend of using these in “for-profit” colleges. For-profit colleges are programs run by businesses with the goal of achieving a profit (unlike your state’s flagship college or the private college nearby). People often refer to for-profit colleges as predatory because their interests tend to be more aligned with receiving student financial aid and payments than providing an education. Their use of arbitration clauses reflects this attitude; their concern is not in ensuring that students can speak up through the court system, but instead ensuring that their own financial and reputational damages are minimized through arbitration.
Who is impacted?
Research shows that predatory practices used by for-profit universities primarily impact low-income communities and communities of color. We also know that people in these communities are also disproportionately impacted by sexual violence. That means that students at these institutions often have a higher chance of experiencing violence and less rights to fight back if their institution fails to protect them.
What can we do about this issue?
Addressing the issue of mandatory arbitration begins with awareness of the problem. Let’s face it: most of us regularly sign and click “agree” on agreements we aren’t able to take the time to read or understand. Students need to be aware that in some cases, these agreements ask them to sign away important legal rights. We can fight back by sharing this information with one another and by asking our institutions explicitly whether they require students and staff to sign agreements containing language about mandatory arbitration.
Furthermore, we can demand that the Department of Education hold schools to a higher standard. In 2016, the Department of Education issued new rules which stated that schools which received federal financial aid could not ask students to sign mandatory arbitration agreements. However, under Betsy DeVos’s leadership, the DOE has delayed enacting these important protections. We can demand that the DOE enact these protections as soon as possible.
ALYSSA LEADER (pronouns: she/her/hers) is serving a EROC's Summer Legal Fellow. She is a graduate of Harvard College and is a rising second year law student at University of North Carolina. She previously worked as a victim-witness advocate for Middlesex County District Attorney's Office and the legal services coordinator for A New Day, a rape crisis center in Southeastern Massachusetts. She is a certified rape crisis counselor and continues to serve survivor communities. Recently, she served on the board of Law Students against Sexual and Domestic Violence and completed pro-bono work on projects related to sexual violence and civil rights of the LGBTQ community. Her activism around sexual violence has been featured in major media publications, including New York Times and Buzzfeed. Alyssa believes strongly in improving availability of trauma informed civil legal services for survivors. In the future, she hopes to work as an attorney representing survivors of campus sexual and domestic violence in Title IX matters.