When Stephanie Swirsky walked onto the campus of the Jewish Theological Seminary in April to lodge a complaint with the school’s Title IX officer about a recently matriculated graduate student, the flagship institution of the Conservative movement was confronted with a thorny dilemma.
Title IX is a federal civil rights law, passed in 1972 as an amendment to the Higher Education Act, that prohibits discrimination on the basis of sex for any education program that receives federal money. It also protects victims of sexual harassment or gender-based violence. (Title IX is most commonly associated with increased funding for women’s sports in
The policy generally covers actions that take place when a student is enrolled in a given institution. But what happens when a school receives a Title IX complaint that is beyond the letter of the Title IX law, where the spirit of the law — and the safety of the current student body — might come into play? In the highly fraught #MeToo era, Swirsky would test the school’s response.
Six years ago, Swirsky, now 35, was a budding playwright trying to make a name for herself in the New York theater world. In that environment, it’s not unusual for playwrights and directors to work very closely to get plays from script to stage. The JTS graduate student in question, a man currently pursuing an advanced academic degree (not rabbinic ordination), was then a well-connected director who Swirsky thought could help her career. Their relationship developed into a gray area between co-workers and friends, and it occasionally verged into intimacy. But on two occasions in 2013, six years before the director would leave the theater world and enroll in JTS, Swirsky alleges he date-raped her.
In the spring, she recounted to JTS representatives the story of what she says transpired between her and the JTS student. She says the JTS Title IX officer told her that the school did not have a responsibility to investigate the allegation because it occurred before the student’s enrollment. The response from JTS left Swirsky disappointed and concerned for the safety of other students.
“I would have expected differently from an institution that prides itself on educating moral and religious leaders,” said Swirsky, who said she felt “stonewalled” by JTS after filing her complaint. “It felt as if they just didn’t want to know.”
Complicating the situation is that Arielle Levites, a former postdoctoral fellow at JTS, also came forward to lodge a complaint against the new graduate student. She had learned about the allegations against the student through #GamAni, an online community that grew in response to the national #MeToo movement.
According to JTS’ Title IX regulations, the school seems to envision the kind of scenario with which it was presented: Though there is no mention in the policy of any obligation to investigate conduct that happened before a student was enrolled, the school does “reserve the right” to investigate allegations of sexual assault, dating violence, domestic violence, or stalking that occurred by a student but that JTS did not learn of “until after the student graduates, withdraws, takes leave, or is otherwise absent from JTS.”
And it appears that at the time the Title IX complaints were filed, JTS never informed the student that multiple complaints had been made about him.
It appears that at the time the Title IX complaints were filed, JTS never informed the student that multiple complaints had been made about him.
Legal experts and abuse advocates agree that the situation JTS faced — and its response — is not clear cut. And it is made all the more knotty by the nature of an institution like JTS, where questions of what is ethical, not just what is legal, come into play.
“It is unusual that a former employee [Levites] filed a Title IX complaint documenting serious concerns about a student’s prior conduct, and that the school seemingly didn’t take further action,” said Colleen E. Coveney, partner at a Washington, D.C.-based law firm that specializes in sexual harassment and assault allegations on college campuses. “It would be a prudent step to fact-check, even if the case technically falls outside their jurisdiction.”
It would be a prudent step to fact-check, even if the case technically falls outside their jurisdiction.
Elise Dowell, JTS’ vice chancellor for communications, responded by email that JTS does not comment on internal conversations relating to students or employees. However, she added that while JTS would meet with “any person who alleges an incident of this nature to determine whether the claim falls within Title IX,” the policy would not apply if “the alleged acts took place when neither the complainant nor the respondent were members of the JTS community.”
Emily Voshell, a Washington-based attorney who frequently represents the subjects of Title IX complaints, said she finds it “hard to see” how the Title IX office at JTS “has any role at all in dealing with a situation that took place when neither of the parties were students and in an off-campus context.”
“There are limits to what a Title IX office can do,” said Voshell. “If I were representing someone who was subjected to a Title IX investigation for something that happened before my client was a student, off-campus, I would see a legal claim against the school for going beyond its jurisdiction.”
(NJJN is not naming the student. While allegations of unwanted sexual advances toward women have trailed him in the theater world, NJJN is not aware of any charges having been brought against him. A spokesperson for the student said he would not be commenting on any of the allegations against him made by women in this story.)
Levites filed a Title IX complaint with JTS in October 2018 and encouraged the school to launch an investigation into the student’s allegedly troubling past. She chose to bring the matter to the school’s attention — even though she was not alleging abuse at the student’s hands — because she was concerned that he might pose a risk to others in the JTS community.
Two weeks after Levites filed her complaint, JTS officials informed her that they would not be proceeding with a Title IX investigation into the matter, she told NJJN.
The student’s spokesperson said JTS did not inform him of either Title IX complaint until after NJJN began inquiring into the matter. Only after that, according to the spokesperson, did school officials tell the student that they had received the complaint, found “nothing” worthy of action, and so opted not to inform him that complaints had been filed against him.
‘Not the first time’
Swirsky — who met with JTS officials in April under the impression that she was filing an official Title IX complaint — was surprised when JTS officials concluded the meeting by stating that JTS had no responsibility to investigate the matter.
“I went in prepared to share every detail of what happened because I felt they needed this information,” said Swirsky, referring to her April 11 meeting with two JTS officers, during which she detailed the alleged sexual assaults that took place in the spring of 2013.
“Their [JTS’] response was, ‘Thank you, but we’re only required to investigate incidents that take place on our campus,’” she said. Since the interview, Swirsky says she has received no form of follow-up from the school.
Two of Swirsky’s friends confirmed to NJJN that she told them what happened back in the spring of 2013.
Dowell, JTS’ spokesperson, said that while the seminary “takes seriously its legal and ethical responsibilities to provide a campus environment that is respectful … there may be circumstances in which other public and private resources are better equipped or more appropriate to investigate such issues.” The seminary, she wrote, is “supportive of individuals who prefer to pursue those avenues.”
Others in the theater industry have filed complaints against the former director and now JTS student, NJJN has learned. Rachel Dart, a 34-year-old theater director based in New York, said she also faced repeated unwanted sexual advances from him when the two were working together at The Flea, an Off-Broadway theater, in late 2013 and 2014. (Dart is the founder of Let Us Work, an advocacy group that aims to combat and end sexual harassment in theater.)
In his capacity as her associate director, Dart says he began making unwanted sexual advances. “He would jump out at me so I didn’t have the opportunity to consent or not,” said Dart. “It really put me on edge.”
He would jump out at me so I didn’t have the opportunity to consent or not.
Dart says she asked the associate director to stop the behavior. When he did not, she reported him to her supervisor at the time, according to emails reviewed by NJJN. When approached with the complaint, her supervisor wrote in a March 5, 2014, email: “This is actually not the first time these stories have emerged…He cannot continue to prey on subordinates in this way … It is important that there is a record of this behavior.”
In an email exchange between Dart’s supervisor and the artistic director at The Flea, the associate director’s behavior was characterized as “unacceptable and actionable.” (Dart’s supervisor at the time did not respond to requests for comment.)
“A complaint of inappropriate touching, after being told that the behavior was unwelcome, is serious, and actionable,” the artistic director at The Flea wrote in a March 7, 2014, email to Dart’s supervisor. “I am not comfortable at all with any continuing or future contact between the complainant and [associate director’s name] — even if supervised — under Flea sanctioned activities … [he] deserves to have his behavior not only noted, but curtailed.”
The Flea confirmed to NJJN that the associate director did work with the company, but declined to comment on allegations of sexual misconduct or his employment with The Flea.
David Winitsky, founder and director of The Jewish Plays Project, a resource that connects emerging Jewish artists with mainstream production companies, worked closely with the director for several years. He confirmed that allegations of the director’s sexual misconduct had come to his attention and that the Jewish Plays Project “will no longer work with him for that reason.”
(Notably, JTS’ application process includes a question asking students to disclose if they have ever been terminated from employment or resigned under pressure from an employer. But JTS declined to comment on whether the school has an obligation to investigate the accuracy of responses to this question.)
Responsibility vs. Prudence
As Title IX policies increasingly come under scrutiny amid a national reckoning with sexual harassment and assault on campus and in the workplace, questions about institutions’ policies will almost inevitably arise.
“Title IX as a federal civil rights law is brief,” said Danielle Pitkoff, a program coordinator and Title IX specialist for Sacred Spaces, a Jewish non-profit that handles claims of abuse. While guidance as to the law’s practical application comes from the Department of Education, she pointed out, individual institutions have significant leeway to “implement their own internal policies, procedures, and response protocols.”
For some institutions, this discretion creates a real opportunity to develop robust, effective policy that is tailored to the needs of their community.
“For some institutions,” Pitkoff continued, “this discretion creates a real opportunity to develop robust, effective policy that is tailored to the needs of their community. At the same time, deference to the institution leaves room for inaction and limited accountability in the case of unclear policies.”
The legally mandated guidelines for Title IX and what is “prudent” for an institution — in order to prioritize safety and minimize the risk of future liability — are two very different things, stressed Coveney, a partner at the D.C.-based law firm, Katz Marshall & Banks.
“The school should have an interest in ensuring that they don’t have students with proclivities towards abusing, harassing, or assaulting women,” said Coveney. “And that they take appropriate steps to address that if they do.”
Hannah Dreyfus is a staff writer for The New York Jewish Week, NJJN’s sister publication.