NYU Submits Letter Expressing Concerns About Title IX Proposals

January 29, 2019

The Honorable Betsy DeVos
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202

Dear Secretary DeVos:

I am writing you to express New York University’s concerns with the Department of Education’s proposal for changing the manner in which universities conduct proceedings for cases involving sexual misconduct under Title IX.

NYU is committed to: reducing and preventing sexual misconduct; creating an atmosphere in which those who have experienced sexual misconduct trust that they can come forward and their cases will be treated seriously and effectively; handling sexual misconduct incidents in a manner that treats complainants, respondents, and all parties with dignity, respect, impartiality, and fairness, including giving respondents and complainants substantial opportunity to review and challenge the evidence gathered; and providing robust support services to those involved in sexual misconduct cases. We believe the policies, practices, and systems we have established over the years work well, and data from the most recent assessment of NYU’s campus climate reaffirm that over 90% of our students believe that the University takes sexual misconduct complaints seriously and handles sexual misconduct cases fairly.

NYU would note that the Department has indicated that its proposed changes were offered to ensure that respondents, usually young men, are not unfairly found responsible and punished. But our University’s extensive experience has demonstrated that sexual misconduct cases can and are handled fairly and effectively, ensuring the rights of all involved, including respondents, while creating an atmosphere in which complainants can feel secure and confident about seeking help.

And so, NYU is concerned that the Department’s proposed changes will harm a system that is working effectively and fairly.

We would ask that the Department pay close heed to the comprehensive analyses and set of concerns submitted by the American Council on Education (ACE), which represents the broader higher education community, and the Association of American Universities (AAU), which represents major U.S. research universities. NYU is a member of both organizations, and on the whole endorses the concerns they have raised. We would ask the Department to follow their recommendations.

In addition, I would like to highlight four primary concerns that NYU has with the changes proposed by the Department. Though these matters are cited in the ACE and AAU comment letters, we believe they are important enough to warrant being re-emphasized here.

• The proposal concerning cross examination: NYU opposes the Department’s proposal concerning direct, adversarial cross examination, which seeks to introduce a feature of the justice system into our community conduct proceedings. Were the proposal to be adopted, it would propel an escalation of adversarial legalistics in sexual misconduct proceedings. College campuses are not courts, and the introduction of this proposal would prove to be a poor fit. Such a procedure would favor those with access to the highest-priced, most aggressive legal talent; make the proceedings far more legalistic and adversarial, and less conducive to complainants coming forward; make proceedings longer; and yet not produce fair or better outcomes. 
• The question of a change in the evidentiary standard: With respect to the Department’s request for comment on whether it should mandate a specific evidentiary standard, NYU opposes a change in the proposed regulation to one that requires the use of the “clear and convincing evidence” standard. The preponderance of evidence standard is widely used in our society, including for other student conduct matters on our campus. Requiring use of the “clear and convincing standard” in Title IX cases would require NYU, like many colleges, to have two separate evidentiary standards – one for Title IX cases and one for all other matters. 
• Conflict with the New York State “Enough is Enough” law: NYU wants to draw the Department’s attention to the fact that a number of its proposed changes directly conflict with provisions of New York State’s “Enough is Enough” law (enacted in 2015), putting NYU and other New York-based universities in a challenging position. Since “Enough is Enough” has been in effect, NYU has implemented and updated policies that have largely been successful in addressing instances of sexual assault on campus. In addition, numerous other states have developed laws that impose varying standards that conflict with the department’s proposal. We urge the department to revise its proposals to recognize existing state statutes that have proven effective in terms of addressing sexual assault by clarifying that schools retain the right to address sexual misconduct that falls outside the scope of the Title IX regulations and otherwise clarifying how universities should reconcile the regulations with competing state legal mandates. Potential conflicts include: 
  • A definition of harassment at odds with local laws. 
  • The Department’s proposal for dismissal of formal complaints for off-campus incidents, versus requirements under NYS law.
• Application of Procedural Requirements to Employee-Respondents: NYU echoes the concerns raised by ACE and AAU that applying the proposed procedural requirements in the employee context is unworkable, particularly the requirement of a live hearing and prohibition of the single investigator model. The process required before a school can take action is extraordinarily unusual with respect to at-will employees and will otherwise be difficult to implement and reconcile with existing collective bargaining agreements and faculty handbooks. Notably, workplace harassment is already amply covered by Title VII and state anti-discrimination laws. Finally, and particularly in the context of complaints of misconduct made by students against employees, the requirement of a live hearing with adversarial participation by advisors will likely chill the reporting and participation of students. This will hinder the ability of schools to discover and appropriately respond to instances of harassment. 

Thank you for your close attention to New York University’s views on these important matters.

Respectfully,

Lynne P. Brown
Senior Vice President
University Relations and Public Affairs
New York University