On May 6 the U.S. Department of Education released a list of long-awaited changes to regulations governing campus sexual assault under Title IX, the law prohibiting sex-based discrimination at federally funded institutions. The new rules were implemented swiftly, just two months later, leaving institutions with a short time to decide how to implement and adapt to them.

Campus sexual misconduct scholars and Title IX activist organizations quickly condemned these changes, claiming that several of the changes would inevitably protect alleged perpetrators at the expense of survivors. An American political advocacy group known as Know Your Title IX planned to pursue legal action against the Department of Education and even encouraged students to organize locally against Education Secretary Betsy DeVos.

A particularly controversial provision of the new regulation requires both accusers and the accused to undergo live cross-examination. Furthermore, initial interpretations of the revised policy indicated that universities would only be obligated to respond to reports of sexual harassment that occurred off-campus in certain cases. These would include the location being in use by an officially recognized institution organization or student and the incident occurring during a university organized trip. This raised questions of what would happen in sexual misconduct instances between university students that occurred during travels or gatherings off-campus.

As a response to these pressing concerns, on Aug. 27, NYU published a news release explaining the policy. The Gazelle interviewed Tina Wadhwa, Director of Student Success and Well-Being, Michael Martinez, Associate Dean of Students and Mary Signor, NYU Title IX Coordinator, to break down these changes and understand their implications on the NYU Abu Dhabi community.

As per the new regulations, colleges and universities are now required to conduct a cross-examination of both parties, as well as any witnesses, during a live hearing led by institution officials. The cross-examination in question will be conducted by advisers for parties, potentially including legal counsel, but not the parties themselves.

Live cross-examination is known to be traumatic to survivors of sexual violence. The DeVos administration subsided to these concerns by making live cross-examination voluntary in the final version of the revised policy document, with the caveat that anyone who refused cross-examination would have any other statements barred as evidence, essentially rendering the concession meaningless. In short, one can now refuse live cross-examination, but in the process would lose the ability to make valid claims on the case.

To concerns regarding placing alleged perpetrators and complainants in the same room for questioning, Signor reassured that only questions deemed relevant by an adjudicator would be asked to any party. This would prevent traumatic or victim blaming questions from being posed to potential survivors.

“Under the new regulations, the parties’ advisors will be permitted to conduct direct cross examination in real time,” Signor confirmed. However, she explained that the change in the cross-examination process is only slightly different than what was permitted previously. Signor reassured that the adjudicator would still serve as the gatekeeper of any questions posed.

Furthermore, regardless of pandemic-imposed restrictions, the university will continue to allow parties to participate in the hearing process remotely and/or from different locations to minimize any direct contact. A code of decorum will also be provided to the parties and their advisors in advance of a hearing and anyone who disregards the procedures will be dismissed.

As per the new policy, colleges are not obligated to accept and handle complaints of sexual harassment that occur outside the United States. This means any harassment or assault that happens in U.S. American education programs abroad would not necessarily be covered by Title IX, but the new regulations also say institutions “remain free” to apply misconduct policies for programs abroad if they so choose. In other words, the old regulations did not require the conduct to take place in the United States and did not include the prescriptive requirement of dismissal, which allowed institutions to go beyond the minimum regulatory requirements.

Signor reassured that both NYU and NYUAD would continue to address sexual misconduct allegations using the same sexual misconduct procedures that existed before the new guidance.

“While it is true that NYU must now dismiss sexual misconduct cases that fall outside of the U.S. for purposes of classifying the case as under a Title IX categorization, the university will still continue to address allegations of sexual misconduct as defined by the NYU policy,” Signor affirmed. “Irrespective of the incident location or the standing of the complainant, [we will be] using the same set of sexual misconduct procedures as before and recently revised.”

A release during the Barack Obama administration stated that for college officials to determine guilt in sexual misconduct complaints, they must meet a “preponderance of the evidence”. This guidance was followed by an explosion of civil lawsuits filed mostly by male students accused of sexual misconduct, who alleged their rights were violated by unfair Title IX procedures at their colleges that lowered the standard of proof.

In addition to “preponderance of the evidence”, the 2020 regulations also allow Title IX officials at colleges to use a “clear and convincing” standard, setting a higher burden of proof. More importantly, while it was previously sufficient for an incident to be “severe, pervasive and objectively offensive” to be handled by Title IX offices, complainants will now have to be able to prove the incident has effectively prevented them from participating fully in university life for their case to succeed.

But Signor clarified: “NYU will continue to use the ‘preponderance of the evidence’ standard in all its cases. This is the same standard of evidence used across NYU’s global network [...] and will not change.”

One silver lining to these changes is the expansion to now include domestic violence, dating violence and stalking as forms of gender discrimination that schools must address under Title IX.

At NYUAD, these changes could allow for applying restorative justice principles in dealing with cases of sexual misconduct. Restorative justice is an educational process that allows those who have caused harm the opportunity to take responsibility for their actions, repair the harm they have caused, and earn back community trust, Martinez explained.

To be clear, he specified, all sexual misconduct cases that meet the revised threshold for sexual misconduct would be handled by Signor’s office in New York. For cases of harassment that do not fit that definition, however, NYUAD students have the option of adjudicating the alleged misconduct through our Student Conduct process.

Martinez cautioned that restorative justice practice would only be a viable option in cases where both parties are amenable to the process and the respondent is of a particular mindset: willing to take responsibility for the harm done and prepared to work hard to repair said harm and rebuild trust.

“When there are disputes about the facts of a case and the respondent is not able to take responsibility for the alleged misconduct,” he explained, “we would need to adjudicate such cases through a more traditional student conduct process.”

Restorative justice is a time intensive and robust practice that reflects the values embedded within the process of an entire community. “It will take time to generate necessary community buy-in and to develop such a process at NYUAD,” Martinez concluded. “But this is an encouraging prospect.”

Essentially, Signor emphasized that these changes to the Title IX policy will not significantly impact how sexual misconduct cases are dealt with on campus. “I know students and other members of the NYU Community believe that there has been a big change in our policy and procedures, and I want to assure everyone that is not the case,” she reiterated.

Wadhwa encouraged students to speak with a confidential counselor to discuss their experience, and to explore the options available to them. “I would also encourage students to meet with Mary Signor and her team to discuss how these policy changes play out in the procedures,” she suggested. “This will allow students to be best informed to make a decision about how to proceed.”

Signor will be hosting a Town Hall on Sept. 21 for students to learn more about our policy — what changed and what remains the same — and how NYU New York collaborates with NYUAD to address complaints. “I truly hope students will be able to find the time to join us,” she said.