Understanding Title IX, its scope, and what Yeshiva University did and failed to do regarding meeting its Title IX obligations is a huge piece of the ongoing lawsuit of the YU rape survivor vs. YU.
Title IX “protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.” Title IX states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Trump’s May 2020 Title IX Guidelines
In May 2020, President Trump revised Title IX and issued new rules. There’s also a 2000 page document that explains the thinking behind the rules. The main goal was to restore due process to the accused. The rules are very important because the way in which Yeshiva University handled the rape case was pursuant to these rules.
Cozen o’Connor, a noted law firm, put together a clear explanation of the Title IX process. You can view it in full at this link. I’m going to grab some of the screenshots to explain the parts that are pertinent to our case.
This is an overall flow chart of how Title IX should function at a university.
You will notice that once a student makes a formal complaint, the university must come to a decision about that complaint. There is an option to determine the complaint meets the criteria for a Title IX issue and continue with an investigation; alternatively, there can be discretionary dismissal or mandatory dismissal.
When Does Mandatory Dismissal Happen?
The issue in our case is when mandatory dismissal of a Title IX complaint occurs. The answer is as follows:
If the conduct did not occur in the recipient’s education program or activity then it cannot be treated as a Title IX complaint. However, this does not preclude action under other provision of the recipient’s [the recipient here means the person who is accused of committing the sexual assault/ rape] code of conduct.
This is further explained in the 2000 page document I mentioned earlier. The question is what is the scope of a recipient’s “education program or activity”? See pages 632-633.
See pages 625-627.
The NPRM cited to Federal court opinions that have considered whether sexual harassment occurred in a recipient’s education program or activity by examining factors such as whether the recipient funded, promoted, or sponsored the event or circumstance where the alleged harassment occurred. While it may be helpful or useful for recipients to consider factors applied by Federal courts to determine the scope of a recipient’s program or activity, no single factor is determinative to conclude whether a recipient exercised substantial control over the respondent and the context in which the harassment occurred, or whether an incident occurred as part of “all of the operations of” a school, college, or university.
The revised language in § 106.44(a) also specifically addresses commenters’ concerns about recognized student organizations that own and control buildings such as some fraternities and sororities operating from off-campus locations where sexual harassment and assault may occur with frequency. The revised language further addresses commenters’ questions regarding whether postsecondary institutions’ Title IX obligations are triggered when sexual harassment occurs in an off-campus location not owned by the postsecondary institution but that is in use by a student organization that the institution chooses to officially recognize such as a fraternity or sorority. The revisions to § 106.44(a) clarify that where a postsecondary institution has officially recognized a student organization, the recipient’s Title IX obligations apply to sexual harassment 625 that occurs in buildings owned or controlled by such a student organization, irrespective of whether the building is on campus or off campus, and irrespective of whether the recipient exercised substantial control over the respondent and the context of the harassment outside the fact of officially recognizing the fraternity or sorority that owns or controls the building. The Department makes this revision to promulgate a bright line rule that decisively responds to commenters and provides clarity with respect to recipient-recognized student organizations that own or control off-campus buildings. Official recognition of a student organization, alone, does not conclusively determine whether all the events and actions of the students in the organization become a part of a recipient’s education program or activity; however, the Department believes that a reasonable, bright line rule is that official recognition of a student organization brings buildings owned or controlled by the organization under the auspices of the postsecondary institution recipient and thus within the scope of the recipient’s Title IX obligations. As part of the process for official recognition, a postsecondary institution may require a student organization that owns or controls a building to agree to abide by the recipient’s Title IX policy and procedures under these final regulations, including as to any misconduct that occurs in the building owned or controlled by a student organization. Accordingly, postsecondary institutions may not ignore sexual harassment that occurs in buildings owned or controlled by recognized student organizations. The Department acknowledges that even though postsecondary institutions may not always control what occurs in an off campus building owned or controlled by a recognized student organization, such student organizations and the events in their buildings often become an integral part of campus life. The Department also acknowledges that a postsecondary institution may be limited in its ability to gather evidence during an investigation if the incident occurs off campus on private property that a student organization (but not the institution) owns or controls. A postsecondary institution, however, may still investigate a formal complaint arising from sexual harassment occurring in a building owned or controlled by a recognized student organization (whether the building is on campus or off campus), for instance by interviewing students who were allegedly involved in the incident and who are a part of the officially recognized student organization. Thus, under the final regulations (e.g., § 106.44(b)(1)) a postsecondary institution must investigate formal complaints alleging sexual harassment that occurred in a fraternity or sorority building (located on campus, or off campus) owned by the fraternity or sorority, if the postsecondary institution has officially recognized that Greek life organization. Further, under § 106.44(a) the recipient must offer supportive measures to a complainant alleged to be the victim of sexual harassment occurring at a building owned or controlled by an officially recognized student organization. Where a postsecondary institution has officially recognized a student organization, and sexual harassment occurs in an off campus location not owned or controlled by the student organization yet involving members of the officially recognized student organization, the recipient’s Title IX obligations will depend on whether the recipient exercised substantial control over the respondent and the context of the harassment, or whether the circumstances may otherwise be determined to have been part of the “operations of” the recipient.
And also 632-633.
The Department appreciates the various concerns raised by many commenters regarding the extent to which students reside or spend time off campus and how the application of the “education program or activity” condition may affect students who experience sexual harassment and sexual assault in off-campus situations, including community college students, vocational school students, and students who belong to marginalized demographic groups. The Department reiterates that the final regulations do not impose a geographic test or draw a distinction between on-campus misconduct and off-campus misconduct. As discussed above, whether conduct occurs in a recipient’s education program or activity does not necessarily depend on the geographic location of the incident. Instead, “education program or activity” relies on statutory and regulatory definitions of “program or activity,”872 on the statement adapted from the Supreme Court’s language in Davis added to § 106.44(a) that education program or activity includes locations, events, or circumstances over which the recipient exercised substantial control over the respondent and over the context in which the sexual harassment occurred, and includes on campus and off-campus buildings owned or controlled by a student organization officially recognized by a postsecondary institution. If a sexual assault occurs against a student outside of an education program or activity, and the student later experiences Title IX sexual harassment in an education program or activity, then a recipient with actual knowledge of such sexual harassment in the recipient’s education program or activity must respond pursuant to § 106.44(a).
The final regulations’ approach reduces confusion for recipients and students as to the scope of Title IX’s protective coverage and recognizes the Department’s administrative role in 872 E.g., 20 U.S.C. 1687; 34 CFR 106.2(h). 632 A Federal court order vacated the following language in 34 C.F.R. § 106.45(b)(6)(i): “If a party or witness does to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility.” Victim Rights Law Center et al. v. Cardona No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals pending (1st Cir.).The Department will no longer enforce this portion of the provision and any related statements in this document may not be relied upon. enforcing this important civil rights law according to the statute’s plain terms. Furthermore, as noted previously, nothing in the final regulations prevents recipients from initiating a student conduct proceeding or offering supportive measures to students affected by sexual harassment that occurs outside the recipient’s education program or activity. Title IX is not the exclusive remedy for sexual misconduct or traumatic events that affect students. As to misconduct that falls outside the ambit of Title IX, nothing in the final regulations precludes recipients from vigorously addressing misconduct (sexual or otherwise) that occurs outside the scope of Title IX or from offering supportive measures to students and individuals impacted by misconduct or trauma even when Title IX and its implementing regulations do not require such actions.873 The Department emphasizes that sexual misconduct is unacceptable regardless of the circumstances in which it occurs, and recognizing jurisdictional limitations on the purview of a statute does not equate to condoning any form of sexual misconduct.
Here’s what this practically means. If sexual harassment, assault or rape occurs within a recipient’s education program or activity, then it is a Title IX complaint. If it does not, then it can still be investigated by the school because the behavior breaks the school’s code of conduct, but it does not rise to the level of a Title IX complaint. The school can determine what the procedure will look/ how the investigation will proceed if the matter does not rise to the level of a Title IX complaint (or, indeed, legally, they could choose not to investigate it at all).
What would best practice look like in this scenario?
New York University (NYU) As An Example
Here’s an example of how New York University addresses this distinction.
Under the section Dismissal of a Formal Complaint, they write:
In the event that the Title IX Coordinator dismisses a Formal Complaint for the reason that it falls outside the Title IX regulations, but nevertheless determines that the report falls within the scope and definitions of Prohibited Conduct contained within the Policy, then the matter will still be handled in accordance with applicable procedures depending on the nature and geography of the reported conduct. In such circumstances, if the reported conduct, taken as true, (a) constitutes Sexual Harassment under Policy Sections VI(A)(1) (Quid Pro Quo Harassment) or VI(A)(2) (Severe, Pervasive, and Objectively Offensive Harassment), then the matter will be referred to the Non-Discrimination and Anti-Harassment and Complaint Procedures for Employees or (b) constitutes Sexual Assault, Domestic Violence, Dating Violence, Stalking, or Sexual Exploitation, then the matter will be handled under the Investigation and Adjudication Process described in Sections V-VI below as a Non-Title IX Complaint.
The decision about whether to dismiss a Formal Complaint, in whole or in part, may be made at any time in the process and will be communicated to all parties in writing. Either party may appeal the decision to dismiss the Formal Complaint by notifying the Title IX Coordinator or in writing of the appeal within five (5) business days of the dismissal of the Formal Complaint. The other party will be notified of the appeal. Appellate Review will be conducted by the Sexual Misconduct Appeals Panel (“Appeals Panel”) or an external reviewer. The Title IX Coordinator will provide the parties with the names of the individuals serving on the Appeal Panel and allow the parties to challenge their participation on the basis of conflict of interest or bias. The Appeals Panel may consult with the Title IX Coordinator, the Investigator, the Complainant, the Respondent, or any other individual. The parties may submit a written statement to the Appeals Panel within five (5) business days of being notified of the request for review. Grounds for an appeal are limited to (1) procedural irregularity that affected the decision to dismiss the Formal Complaint, (2) new evidence that was not reasonably available at the time the dismissal decision was made, that could affect the outcome of the matter; and (3) the Title IX Coordinator, Investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter. The Appeals Panel will render a decision in writing to both the Complainant and Respondent within ten (10) business days of the request for review.
Note that NYU’s investigative process is the exact same in the case of a Title IX Complaint and a Non Title IX complaint. See screenshot below.
They also have a section on their website which they call Investigative Resolution (Non Title IX Complaints) that explains what happens post investigation in those situations. You can read all about it at this link.
NYU has chosen to be totally transparent about their process and to make their Title IX Complaint investigation and their Non-Title IX Complaint investigation as similar as possible.
So has Columbia University, which addresses why they have two different policies (one called Interim Title IX Policy and one called Gender-Based Misconduct Policy) in their FAQs, but whose investigative procedures are also the exact same.
In contrast, let’s take a look at Yeshiva University’s Non-Discrimination and Anti-Harrassment Policy and Complaint Procedures (see link). (Note: The link I’m using is, to my knowledge, is what was in effect when the YU rape survivor was raped. There is now an updated version of these policies from October 2021 available on YU’s website. It provides slightly more clarity, but still different investigative procedures.)
They explain on page 30:
DISMISSAL OF THE COMPLAINT Initial Evaluation of Complaint and Non-Merit-Based Threshold Dismissal. Upon initial evaluation, if the Title IX Coordinator or that person’s designee determines that the alleged conduct: (1) even if proven, would not constitute Title IX Sexual Harassment (as defined in this Policy); (2) did not occur in a University education program or activity; or (3) did not occur in the United States – then the University must dismiss the complaint with respect to that conduct. (Note: Where a complaint is dismissed under this section but the conduct alleged may violate other University policies, such as the prohibition against Other Sexual Misconduct, the Title IX Coordinator or that person’s designee will refer the matter to the appropriate University office for resolution under the relevant procedure.)
and also agree
Notice and Appeal of Dismissal. Where a complaint is dismissed, the Title IX Coordinator or that person’s designee will notify both parties simultaneously in writing of the dismissal and the reason(s) for it. Any party may appeal the dismissal using the appeal procedures outlined in Appendix B.
This is still extremely unclear. What does “will refer the matter to the appropriate University office for resolution under the relevant procedure” mean? What exactly happens when someone’s Title IX complaint is dismissed? I think it might then become the topic addressed in Appendix C on page 35, ‘Formal Resolution of Complaints Not Involving Title IX Sexual Harassment.’ However, it’s extremely unclear to me as a reader, and I can only imagine to the teenage students currently attending Stern College or Yeshiva College.
All this having been said, Yeshiva University can make a compelling case that they were within the bounds of the law when they chose to dismiss the YU rape survivor’s Title IX complaint. After all, the rape occurred in an off campus apartment that was not owned by a sorority or fraternity, and thus one could argue it did not meet the criteria of a Title IX complaint. (This is why the lawsuit spends so much time arguing that since the student would have been unable to rent the apartment without YU’s assistance, the apartment was in an area patrolled by YU security guards, and both the YU rape survivor and the alleged assailant were student athletes, it should have risen to the Title IX standard of occurring within or in conjunction with the “education program or activity.”)
Dismissal in Writing
Title IX states that if a complaint does not happen on campus or “in conjunction with an education program or activity” then it can be dismissed. But that dismissal must take place in writing, at which point either party has the ability to appeal.
According to the lawsuit, this did not happen.
See page 6.
18. YU thus deliberately misled Plaintiff, all YU students, and the YU community-at-large into believing that YU had handled Plaintiff’s Title IX Complaint based on her rape by PERRY DOE as a “Title IX” matter in accordance with Title IX rules, regulations, and procedures.
19. Unbeknownst to Plaintiff and the entire YU community, YU, through its high-ranking administrators and officials, Andrew “Avi” Lauer, Esq., General Counsel, and Chaim Nissel, Title IX Coordinator, handled and treated Plaintiff’s rape allegations not as a Title IX matter, but as a mere non-Title IX disciplinary matter.
20. In violation of Title IX, YU, Lauer, and Nissel, failed to notify Plaintiff, in writing or otherwise, that it was dismissing her formal Title IX Complaint.
Even if you are not persuaded by the lawsuit’s argument that a rape between two student athletes that took place in an off campus apartment would rise to the threshold of a Title IX complaint, you are left with a very clear breach of duty. It was the job of the Title IX office to inform the rape survivor- in writing- that they would not be treating her complaint as a Title IX matter, and explain why. They did not do this.
Equally concerning is the fact that how a non-Title IX matter is treated and investigated is not clearly explained to Yeshiva University students (unless, as I think it is, it is what is mentioned in Appendix C).
Also, if it is what’s mentioned in Appendix C, then for reasons unknown, Yeshiva University decided not to follow the same best-practice investigative process (as NYU did) in cases of Title IX complaints and non-Title IX complaints, but to create an alternative (and easier process).
They are within the law to make this choice, of course…but is that the kind of school you want to send your children to? Other New York area schools, like NYU or Columbia, tried to make their procedures and investigations as similar as possible so as not to make an arbitrary distinction between one of their students being raped on campus or off campus. Yeshiva University chose not to do this.
It brings to mind the idea of a נבל ברשות התורה, someone who is within the law but is a boor nonetheless. Yeshiva University champions Torah values, which include caring for the oppressed, the victimized, the weak, and the marginalized. Is this the way to care for them?
I hope Yeshiva University chooses to see this lawsuit for the wakeup call it is. They should create a full, detailed and transparent explanation of Title IX at their school. When I searched yu.edu for Title IX, this is what I found. It’s pitiful. It doesn’t make clear to students what their rights are, how to file a complaint, the different kinds of complaints, or anything else that would truly help protect students. There is so much opportunity for positive change- but donors would have to insist YU take a leaf from NYU or Columbia’s playbook and create a dedicated, clear and transparent system, policy, process and site that addresses students’ concerns in full. Make it easy for students to understand how they can get help- and the kind of help they are entitled to get. Be transparent, be clear, make things stupidly easy for survivors to navigate the process. That would be the best way to show you actually care.