‘What Is Said or Done at the Center’

Part of the 2017 sexual harassment complaint against higher education scholar Marybeth Gasman, revealed this week in Inside Higher Ed, is that she required graduate and staff assistants at her University of Pennsylvania research center to sign blanket nondisclosure agreements. "Basically what is said or done at the center stays within the walls of the center!" the agreement says, in bold.

Both master’s and doctoral students at Penn's Center for Minority-Serving Institutions were told they had to sign the document during program orientation, former center assistants recalled. One described the conversation as “aggressive and jarring.” And as concerns about center climate grew, the former assistant said, Gasman’s “power” -- coupled with the NDA -- “really made folks feel handcuffed. I thought if I spoke out, Penn would sue me.”

It’s easy to see how an NDA could exacerbate climate concerns in an academic environment -- especially for students. But are NDAs ever appropriate in higher education? The answer is no, with some qualifications.

Confidentiality Agreements vs. NDAs

Attorney Scott Lewis, former professor and associate vice provost at the University of South Carolina and current partner at TNG Consulting, said it’s somewhat common for professors and students to sign confidentiality agreements about a narrowly defined set of issues. Students working in student affairs offices, for example, typically have to sign confidentiality agreements stating they will not share their peers’ personal information, in accordance with the Family Educational Rights and Privacy Act, or FERPA.

Students and faculty members working on a patentable project in a lab might have to sign agreements protecting intellectual property, Lewis continued. And in the case of a center doing research on academic institutions, colleges and universities might share data that they would only ever want to see published as part of a broader statistical sample. That, too, could be outlined in a confidentiality agreement.

Not all confidentiality agreements are uncontroversial. Sometimes professors credibly accused of misconduct quietly depart institutions with both parties having agreed to confidentiality surrounding terms. Vermont Law School in 2018 did away with tenure and forced tenured professors who wanted to stay to sign nondisclosure and nondisparagement provisions surrounding the restructuring.

Also last year, Purdue University Global faced criticism for proposing a confidentiality and restriction agreement that would have blocked employees from sharing "trade secrets" and other information about the university, criticizing it after they left, and owning their course materials. It eventually backed down. Liberty University faced scrutiny, too, this year, for asking laid-off divinity professors to sign confidentiality agreements with their severance packages.

Still, Lewis said he’d never encountered a blanket NDA that prohibited students or faculty members from discussing anything and everything about their work.

With a “what happens in Vegas”-style agreement, Lewis said, “One has to wonder why? If you went into an office and they told you, ‘Anything anyone says in here is protected,’ you have to wonder what is being said. What don’t you want anyone to know?”

The Case Against Gasman

At the Penn center, Gasman was accused of participating in and encouraging frequent sexual conversations and jokes. She allegedly talked about when she lost her virginity, for example, and students played "Pin the Penis on the Naked White Man" at a center party. She often talked about her breasts and bras. Former assistants also said that Gasman, who is white, seemed to joke most about and with people of color in ways that “fetishized” them. Both at work and in comments on the center's running GroupMe app chat, Gasman talked about some assistants' butt sizes and encouraged them to hook up.

Penn received dozens of screenshotted texts and other evidence in 2017 and hired an independent investigator to look into complaints against Gasman. Complainants were never provided a formal copy of the investigation or definitively told whether Gasman had violated institutional policies or laws against sexual harassment. But Dean Pam Grossman of Penn’s Graduate School of Education ordered changes to address what she at the time described as cultural issues. Training was required. Master’s students were moved out of the center to another higher education program location as staff and Ph.D. students from another program were moved into the center to provide oversight. A former center employee resigned.

Gasman remained. But this week she is moving her center to Rutgers University at New Brunswick. She did not respond to repeated requests for comment about the investigation and the circumstances of her departure from Penn.

Penn has declined comment on the investigation. Grossman in a memo to the graduate school this week said she could not address personnel matters but promised that Penn takes all reports of sexual misconduct seriously. A spokesperson said Thursday that he couldn't comment on Penn's NDA policy.

Rutgers has said that Gasman was vetted prior to her hire.

A Tool of Intimidation

Inside Higher Ed obtained copy of a student NDA signed in 2017, with language identical to ones signed at least as far back at 2016. Unlike the kind of narrowly defined confidentiality agreement that Lewis described, Gasman's NDA says to keep “all information provided to me by the CSMI team in strict confidence,” including that "gathered through discussions, emails, meetings, etc." Also restricted is any of the center’s "operating plans, research, communication and related programs and processes under development, as well as personal information and discussions disclosed to you by the center’s staff and students.”

Any “violation of the above-mentioned terms will result in appropriate consequences in addition to a possible termination of the business relationship,” reads the NDA.

There's no evidence thus far that Gasman ever acted on the NDA, legally or otherwise. Still, it was a symbol of Gasman's power over her students.

Another former graduate assistant at Gasman's center said that in some ways, the NDA "was just a piece of paper that didn’t have much effect on whether or not to speak out," and that "it was more about the power dynamics." The center was supposed to be such a "family," the assistant said, and "voicing any critiques seemed risky. I never wanted anyone to think I was being a downer, or a prude or any kind of naysayer."

‘If You Were Patenting a Gene, Maybe’

Sara Goldrick-Rab, professor of higher education and executive director of the Hope Center for College, Community and Justice at Temple University, said she’s signed broad nondisclosure agreements when doing independent consulting. She asks her own center employees -- who are not students -- to sign confidentiality agreements governing only sensitive information about their research, not center operations.

That agreement leaves staff members free to discuss their employment concerns, including with human resources -- and they have, she said: Goldrick-Rab was once reported to HR for asking that her employees be on the group email app Slack throughout the day, to facilitate teamwork.

“That kind of thing happens, and it’s normal,” she said. Temple's public status also assures some level of transparency. Penn, meanwhile, is private.

Joshua Hawley, director of the Ohio Education Research Center at Ohio State University, said FERPA-related confidentiality agreements and those relating to other health privacy laws are "fairly common in my line of work." And that "feels very appropriate, complying with federal code," he said.

An NDA, meanwhile, "just seems like something inappropriate to universities in the way I have done work. I could see if you were patenting a gene, maybe."