The Problem With NYU’s Letter to Betsy DeVos

NYU’s letter urging Betsy Devos not to change university sexual misconduct policies should not dismiss the importance of cross-examination in such cases.

Mert Erenel, Staff Writer

TW: This article discusses sexual assault and sexual harassment.

The physical and psychological effects of sexual assault are inarguably damaging. Approximately 60 percent of sexual assault victims report either short-term or long-term impacts such as depression, post-traumatic stress disorder, anxiety or drug abuse. No one in their right mind would dismiss this problem in our society. Even if they don’t address it morally, they must address it pragmatically. I favor both.

Therefore, I would like to address some of the issues I have with NYU Public Relations Senior Vice President Lynne P. Brown’s letter to Secretary of Education Betsy DeVos about proposed changes to Title IX. This is not to say that I agree with DeVos’ proposals — such as narrowing the definition of sexual harassment — which I expect will be problematic for victims presenting their cases in the future due to legal semantics. However, I’m confining my discussion to a critique of Brown’s letter and the arguments made — even though I consider the critique of DeVos’ proposals highly important as well.

My primary concern is NYU’s opposition to cross-examination and the given arguments to justify it:

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“[Cross-examinations] 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,” Brown wrote in her letter.

To say that cross-examination does not produce fair outcomes is worrying. Yes, cross-examination would not be in the favor of the complainants — as they are designated in the letter — coming forward, but the proceeding itself would be fair. It would allow both sides to make their statements and challenge the credibility of those statements. The letter to Betsy Devos says that the university is committed to “ … handling sexual misconduct incidents [by] giving respondents and complainants substantial opportunity to review and challenge the evidence gathered.”

But this policy statement cannot be seriously applicable when considering NYU’s Title IX Procedures, which state that “the Complainant and Respondent will not be permitted to directly question one another.” They are also not allowed to seek legal counsel, and even if they did in the form of an advisor, “the advisor may not speak or otherwise participate in the meetings.” These clauses alone indicate many problems in the context of these sexual misconduct proceedings.

It is true that direct cross-examination between complainant and respondent has the potential to re-traumatize victims of assault. Nevertheless, if a complainant is not required to be present at these hearings, as written in NYU Title IX procedures, then the critical opportunity for parties and decision makers to observe real-time responses and assess inconsistencies in testimony are tossed out. The complication in this process is that when victims are cross-examined, their psychological state may hinder their ability to give an accurate testimony, especially when challenged by a skilled cross-examiner. Despite this difficult possibility, cross-examination is necessary if one wishes to seek justice.

According to Brown’s letter, abiding by Title IX legislation “would favor those with access to the highest-priced, most aggressive legal talent,” making it seem as though the accredited multi-billion dollar educational institution would be incapable or unwilling to designate a decent lawyer for its students in such serious matters if that were the case. Such a statement is inexcusable. 

Another section of the letter says that NYU opposes the proposed regulation to “clear and convincing evidence standard.” But Brown has not provided a single reason why this is wrong, apart from acknowledging that NYU would “have two separate evidentiary standards — one for Title IX cases and one for all other matters,” and that its alternative, preponderance of evidence, “is widely used in our society.” There is no argument from Brown as to why we shouldn’t support the new proposal’s “clear and convincing evidence” standard. To say that we use the same standard for other matters is not a sufficient answer.

With #MeToo, the election of an anti-feminist President and the appointment of a Supreme Court Justice accused of sexual assault, expecting any private university to stay neutral would be naive. But NYU’s insistence on conducting investigations in private, with no in-person cross-examination between the parties involved, is not sufficient for justice.

A reasonable standard of evidence and presumption of innocence are aspects that should be considered seriously in Title IX proceedings.

Opinions expressed on the editorial pages are not necessarily those of WSN, and our publication of opinions is not an endorsement of them.

A version of this article appeared in the Monday, Feb. 19, 2019, print edition. Email Mert Erenel at [email protected]

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