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The Importance of No-Contact Orders in the College Title IX Process

After someone makes a Title IX complaint of sexual assault or harassment at a college or university, a long process can ensue before the school resolves the matter—or even decides how to best go about resolving the matter. During this time, the school must take necessary interim measures to keep the students involved safe. One common measure is to enforce a No Contact Order (NCO) between the students.

Schools can enact NCOs at different times during the Title IX process, including:

  • Before an investigation begins
  • During the investigation phase
  • During the informal preliminary stage, while the school decides how to handle the matter (sometimes call No Contact Agreements)
  • During the formal disciplinary process

NCOs can change an accused student’s life, but they provide important protections from further harassment or harm for the survivor. The following provides additional information about NCOs.

What Is a No Contact Order?

No Contact Orders are similar to restraining orders in domestic violence cases, though courts do not order them. Instead, the school should decide the scope and specific terms of the NCO based on the circumstances at hand. Since the new guidance in 2017, a school cannot make an NCO—or any other safety measures—available to only one party. Schools also may not favor one party over the other during the process by establishing unfair or one-sided terms of the order.

An NCO can prevent one party from contacting the other by any of the following means:

In addition to prohibiting contact, certain NCOs may make spatial restrictions as well. For example, one student may not visit or live in the same vicinity or building as the other, which can limit access to dining halls, libraries, dorms, and other popular buildings on campus. One student may also need to move or switch classes as an additional interim measure and ensure compliance with the NCO.

Goals of an NCO

First and foremost, colleges and universities should focus on protecting the well-being and safety of students in the Title IX process. Like many federal laws, Title IX not only prohibits sexual discrimination (including harassment and assault), but also prohibits retaliation against parties involved in Title IX complaints.

For example, if a Student A reports sexual assault by Student B, Student A and friends may want to “punish” Student B through taunts or humiliation. On the flip side, Student B and friends may want to make Student A’s life miserable for making the report.

NCOs not only hope to prevent any further assaults or harassment between the students but retaliation as well, which keep the college in line with Title IX requirements. Prohibiting students—and even their friends—from speaking to the other party protects against retaliation throughout the entire process so the students can continue their educations as normally as possible.

Do You Have an NCO?

Whether you are the complainant or respondent to a Title IX case at your college, you may find an NCO in place against you. You must abide by all of the terms of the order to prevent any further trouble. Violating an NCO can result in additional disciplinary charges against you and may even result in retaliation claims. Even if you just want to call the other student to apologize or explain, you shouldn’t even do so if it violates a No Contact Order.

Protocol May Vary According to the Violation Alleged

The terms of a no-contact order can vary tremendously depending on the institution and the circumstances involved. In addition to communication and contact prohibitions, the order may also include spatial restrictions. A student may not be permitted to enter a building or certain parts of campus, for instance. School policies should specify the factors that influence the issuance of an NCO, and these policies should also determine the severity of the restrictions in the NCO.

For example, policies set by the University of Virginia state that the decision to issue a No Contact Directive should be based on the following factors:

  • Whether the alleged conduct involved physical violence or the threat of physical violence
  • Whether continued contact poses a “substantial, objective risk of emotional harm” to either party
  • Whether the alleged conduct involved a threat to the safety, health, or property of an individual
  • Whether continued contact between the parties could impact the institution’s Title IX investigation
  • Whether the alleged contact involved any harassment or intimidation of either party

In addition, officials may consider whether either party has made a good-faith request for a No Contact Directive and they can consider any other facts or circumstances deemed relevant to the situation.  

Applying these factors, the protocols for an NCO could look very different in different cases. In one situation, an NCO might prohibit all forms of communication but not restrict either party’s movements on or off campus. In another situation, a school might issue an NCO that prohibits a student from appearing in many or most locations on campus and requires that student to attend classes virtually and use libraries off campus.

The Difference Between a No Contact Order and a Protective Order

Many people equate a no-contact order with a protective order issued in domestic violence cases. While the comparison provides a useful starting point, there are some key differences to be aware of.

First, a protective order such as a restraining order or domestic violence protection order is an order issued by a court of law. Some orders are issued by civil courts, and some by criminal courts, but either way, they can be enforced by the court. Violation of these orders is generally a criminal offense and can be a felony, depending on the jurisdiction.

A No-Contact order issued by an educational institution is different. It cannot be enforced by the police or in court. Moreover, the terms are set based on campus policies rather than state law. The standard to obtain a No-Contact order is likely to be much lower than the standard required to obtain a protective order from the court. For instance, for court orders that are not temporary, generally, a court must hold a hearing and allow both parties the chance to make their case for or against terms before the judge will issue an order. in many cases, schools will impose a No-Contact based simply on a request. 

For an NCO on campus, while either party can request an order, they may not have the opportunity to present their side of the story before the order is issued and enforced. In some cases, this can amount to an imposition of a penalty before a finding of responsibility. On the other hand, in many cases, schools will impose a No-Contact based simply on a request. It is important to consult with an attorney regarding the imposition of an NCO if it affects your rights.

Call a New Haven, Connecticut, Title IX and NCO Attorney

NCOs are only one complicated part of the intricate Title IX process. Hire an experienced Title IX attorney to help you navigate the process and prevent any unforeseen consequences. If you’re accused of a Title IX violation or want to make a complaint, please call Nesenoff & Miltenberg, LLP at (212) 736-4500 or write us online to discuss your situation today.