Miltenberg: Andrew Miltenberg discusses the “The Miranda of Title IX”

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. 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 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.

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