Months after a Yeshiva University student accused a member of its celebrated basketball team of rape and university officials of mishandling her complaint, the school has restructured its office for handling sexual harassment and assault.
Undergraduate Dean Karen Bacon announced the changes in a letter to students this week, saying they had been prompted by an internal review.
The announcement comes five months after publication of an anonymous essay in the YU student newspaper and an article in the Forward in which a female student accused a school basketball player of forcing her to have sex, and the university of protecting star athletes instead of her health and safety.
Months after student’s accusation, YU’s Title IX office ‘restructured’
The piece sparked a call from some students for the university to take such accusations more seriously.Citing privacy concerns, the university has not answered many questions about its investigation of her complaint. Among the issues are whether the university violated protocol by not providing the accuser with counsel, and whether the lawyer hired to conduct the probe — who the student says did not interview all the witnesses she provided — had a conflict of interest due to his ties to YU
The university’s Jan. 11 announcement, which was first reported in the YU Commentator, said the Title IX office – named for the federal statute that prevents discrimination based on sex in educational programs receiving federal funds – would add an employee “dedicated exclusively for sexual harassment and assault matters.”
It also promised to train counselors on sexual harassment and assault responses, and to assist students in navigating Title IX.
“The university cares deeply that our community remains a safe and positive environment for all,” Bacon wrote, “and it continually seeks to make the processes more accessible and transparent for our student body.”
Whether the current Title IX coordinator, Chaim Nissel, would remain in his role is unclear. The internal review of the office’s process cited by Bacon in her letter to students did not acknowledge any wrongdoing in prior cases.
In an interview on Thursday, the student who accused the basketball player of rape said she had been consulted in the university’s internal review of Title IX processes, and called the announcement “a step in the right direction.” Of the additional counselors to help students navigate Title IX processes, she said: “If they had that before, so many things wouldn’t have gone wrong.”
But she said Nissel should be removed from his post.
Under Nissel’s watch, the student said, the Title IX office failed to provide her with an adviser or advocate beyond the official who took her complaint, and the outside lawyer did not interview two witnesses — people she first told about the alleged assault – whose names she provided.
Through a spokesperson Dean Bacon declined to answer questions about the Title IX changes or the handling of the rape investigation.
Dean Nissel did not reply to a request for comment Friday afternoon.
“The Miranda right of Title IX”
The student has repeatedly tried to appeal the university’s finding that the basketball player had not violated any school policies but her requests have been denied. An independent lawyer consulted by the Forward, however, said that if the student’s assertion that the university never provided her with an adviser or lawyer is correct it is “a significant violation” and grounds for a new appeal. Title IX requires schools to inform both the complainant and the subject of the complaint that they are entitled to a support person or an adviser. Schools generally allow complainants to select a faculty member to work with or provide a list of attorneys the institution will help pay for.
“If they didn’t offer those things, that’s a significant violation,” said Andrew Miltenberg, a New York attorney who specializes in due-process cases. “It’s the Miranda right of Title IX.”
The student also said there was no formal hearing following the investigation, — which Miltenberg said was unusual.
In an email following her complaint, the university shared with the student a link to YU’s Non-Discrimination & Anti-Harassment Policy, which says the the Title IX coordinator will provide “information about each party’s right to have an advisor of their choice.” A separate policy document on the same website, the Sexual Assault Student Bill of Rights, also says the student has a right to an adviser.
But she said she never got any more information and that the lack of such an adviser led to her making mistakes that undermined her case.For example, she did not know that because Title IX investigators do not have subpoena power to access medical information from a hospital directly, she needed to personally provide the results of the rape exam she underwent after the incident. And her email to Nissel requesting an appeal was rejected for lacking “appropriate basis,” something an attorney likely could have helped with.
One of the witnesses, a roommate who accompanied her to the hospital where the rape exam was conducted, said in an interview that she was unaware of any attempt made to reach her.
Miltenberg said he couldn’t think of a reason why investigators wouldn’t seek that person’s testimony, which could corroborate the student’s story or undermine it.
“It seems to be very critical information,” he said, adding that not talking to them “undermines the entire investigative report.”
Miltenberg said that these two violations, if accurate, would be grounds to overturn the case, and that if the university refused to, she could sue the school under Title IX.
A conflict of interest
After the student filed her complaint last year, the school hired a law firm, Seyfarth Shaw, to conduct an investigation, describing it as “independent” in an August statement.
The lead investigator from Seyfarth, according to people with knowledge of it, was Dov Kesselman, a Yeshiva alum who remains affiliated with the school. He is one of about 40 attorneys listed as part of the school’s General Counsel’s Council who, according to the YU website, “believe in the mission of the university and would like to assist through the provisions of pro bono services.”
Kesselman, a partner at Seyfarth, declined to discuss the situation. His company profile lists him as a labor and employment attorney who “actively works with higher education clients in tenure and student discipline matters, representing dozens of universities on the East Coast and across the nation.” It is unclear whether he has led other Title IX investigations for YU.
Miltenberg said the appointment of an investigator who was affiliated with the school raises concern.
“It’s a little cute, because it’s not really an independent party,” he said.
The basketball team, which was in the middle of an unprecedented 50-game winning streak when the student filed her complaint, brought a host of good publicity to the school in 2021. It was featured in ESPN, the Los Angeles Times and the New York Post, and a recent game was advertised as the “most hyped” in the history of Division III men’s basketball.
“When you add the fact that he is a basketball player on a team that’s getting national exposure,” Miltenberg said, “to the fact that there was someone with essentially a vested interest in seeing the school continue to succeed, it raises enough questions that we can’t have confidence in the result. That’s what I would say if I was the girl’s lawyer.”
The student said she only became aware of Kesselman’s connection to YU after her case was closed.
Waiting to be heard
The university’s changes to the Title IX office follows an uptick in pressure from students and alumni.
In a withering letter to the editor publishedhttps://yucommentator.org/2021/12/letter-to-the-editor-all-macs-coverage-must-include-the-rape-harassment-allegations/) in the Commentator on Dec. 19, a recent graduate criticized the newspaper and the university for moving on from the allegations in a rush to celebrate the team.
“Carrying on as if nothing is amiss upholds and perpetuates a status quo that we know is decidedly hostile to victims of sexual violence,” wrote Doniel Weinreich, who was in the YU Class of 2021.
And on Jan. 5, the student who made the rape allegation spoke on a New York-area radio show, describing the incident and saying she had been intimidated by another member of the team.
On Thursday, the student said in an interview that she is “pretty confident” that future investigations would be handled better, but that she still wants her case to be reopened.
“I’m going to try to ask them again this week,” she said. “Maybe they’ll actually do it this time.”