By: Elliot Heller  | 

Letter to the Editor: YU Broke the Law in Responding to Rape Allegation. Blame It, Not the Basketball Team.

To the Editor:

The August article in The Commentator, in which an anonymous student tells her story of being a victim of rape at the hands of another student, and the school’s lackluster response to her complaint, has gained increased attention recently. This was primarily due to national media attention received by the YU basketball team as its winning streak reached 50, as well as a letter to the editor by Doniel Weinreich criticizing The Commentator for not mentioning the allegations in its coverage of the team. (The alleged rapist was a member of the team as of last year, and the student says another team member harassed and shamed her in a public forum at the time.) 

The student’s complaint contained three primary elements: the school’s compelling her to sign a non-disclosure agreement (NDA) before completing its investigation, its failure to penalize the alleged rapist in any way and its failure to take any action to accommodate the student’s requests for increased protective measures for her on campus. (There were other complaints she mentioned in the original article; I recommend reading it to refresh your memory and give this full context.) Needless to say, these actions don’t exactly embody the values of a culture of non-tolerance for abuse, protection of victims and prioritization of student safety. But after conducting some research, I discovered that YU's actions don’t just seem wrong — they are wrong. In the eyes of the law.

Section § 106.45 of Title 34 of the Code of Federal Regulations states that an educational institution’s receipt of a “formal complaint of sexual harassment“ (clarified elsewhere to include sexual assault) must require “an objective evaluation of all relevant evidence — including both inculpatory and exculpatory evidence.” In other words, the school has to conduct and complete an investigation, including transmitting its findings to all relevant parties. There is no reason to think this obligation changes if the complainant refuses to sign an NDA as YU implied, as per the student. To make matters even more clear, the U.S. Department of Education ruled in April that Arizona State University was in violation of federal Title IX regulations by requiring students alleging sexual assault to sign an NDA prior to completing its investigation process. If YU forced the student to sign the NDA for the investigation to move forward, as the student herself says, then it clearly and unambiguously violated Title IX — which, to be clear, constitutes a violation of the law. The department states this explicitly: “The University cannot place conditions of any kind on a victim of an alleged sexual assault or their advisor, including the execution of a non-disclosure agreement as a pre-condition to full participation in the disciplinary process or to access to simultaneous written notification of the outcomes of a disciplinary proceeding.”

It would seem that YU violated the law in another respect as well. The Department of Education has made it clear that under Title IX, an educational institution must provide someone who files a complaint of sexual assault with  “supportive measures designed to protect the safety of all parties or the [school's] educational environment, or deter sexual harassment,” including “campus escort services,” “increased security” and “mutual restrictions on contact between the parties.”

But per the student, this was simply not done. In her article and in a recent radio interview with Jeff Lax, she revealed that she contacted the university on multiple occasions to express concerns about her safety due to the likelihood of encountering her alleged attacker on campus but to no avail.

“I have been told to just deal with it and that nothing can be done by YU — not one thing,” she wrote. The administration told her that it was “up to” her alleged rapist if he “wanted to give me space on campus or not.” Let that sink in for a minute.

Obviously, the administration’s actions — and inaction — should be completely unacceptable to us as a school community. Dean Bacon assured students shortly after the article’s publication that steps were being taken to improve the school’s procedures, including administrators meeting with students to receive input on what they want to see be part of the process. It took four months and the case’s becoming the talk of campus again for them to finally announce those changes.

The changes themselves —that the Title IX office be restructured and that the rules and process for reporting sexual assault are conveyed to students in a more clear manner —though long overdue, are certainly a step in the right direction. Yet Dean Bacon’s months-long review of the system contained two findings that were dismantled in short order by this article and the complaining student — that YU “follows all federal Title IX and NYS guidelines and procedures pertaining to sexual harassment and assault," and that it “has security protocols in place to protect the involved parties.” If this is truly the case, why hasn’t the administration issued a statement stating that the student in this case was in fact provided with the necessary security measures which she requested? Now that it is clear that they blatantly violated a Title IX regulation, will they issue a statement explaining how that is somehow not true? Forgive me for not holding my breath.

While not defending itself against the student’s claims, the school has also not issued an apology for its gross mishandling of the case. And the school still refuses to request access to the rape kit, simply telling the student that the “case is closed” every time she would bring it up. In the midst of all of this, YU continues to brazenly make the basketball team a centerpiece of its marketing and recruitment efforts, hoping that it can sweep this under the rug like it did in August until we all forget about it again. We don’t have to let that happen. 

The proper way to deal with this is not to boycott the basketball team but to demand answers from the administration regarding its inexplicable actions in this case. To demand that it re-open the case, review the alleged victim’s rape kit and release her from its bogus NDA.  A petition. A mass protest outside of Rubin or Belfer — perhaps on a big fundraising day. Students have been vocal in speaking up against YU’s past cover-ups of sexual abuse by staff members and have turned up in the hundreds to protest its discrimination against LGBTQ students. The response was not to boycott the high school (where the past abuse occurred) or to refuse to participate in all clubs — but to stage protests, conduct a public pressure campaign and demand that the administration do right by its students. The response here should be no different. Pirkei Avot tells us that “in the place where there is no person, strive to be one.” Let us do that, and bring the change that is so desperately needed.

Elliot Heller (SSSB ‘19) is a graduate student studying public administration and is a counselor for individuals with special needs.