By Cindy Kuang
As a University committee prepares to report on and potentially revise Stanford’s year-old Title IX pilot process, many community members say the process — and Stanford’s broader attitude toward sexual violence — falls short.
The pilot follows a previous overhaul of Stanford’s sexual assault adjudication procedure that began in 2010, a year before the Office of Civil Rights (OCR) sent its “Dear Colleague” letter calling on U.S. colleges to review their sexual assault policies. The latest Title IX process grew out of a task force of faculty and students convened by Stanford in 2014 amid heightened scrutiny of the University’s sanctions for sexual offenses; that June, Leah Francis ’14 publicly denounced the outcome of her Title IX case in a widely forwarded email to the Stanford community.
“That was… a really big case,” said Claudia McKenzie ’18, the undergraduate representative on the advisory committee reviewing the pilot program. “There was a lot of student activism behind it. The combination of [that case and the OCR’s letter] caused Stanford to go through a process of reviewing the policy.”
Student faith in the University’s policies and actions surrounding Title IX is low, according to a Stanford Daily poll conducted mid-January. The poll found that, among over 300 student respondents, only 7.3 percent approved of how Stanford is handling Title IX compliance. Nearly 65 percent disapproved, while the rest said they “don’t know.”
And that was before Stanford’s latest Title IX tangle — its controversial dismissal of a sexual assault lawyer — made The New York Times.
“I think most students are rightfully outraged but unfortunately not entirely surprised,” said Chair of the Undergraduate Senate Shanta Katipamula ’19, referring to the lawyer’s departure. “Personally, I have stopped being surprised. And I think that’s very troubling that that’s the state we’ve reached at Stanford.”
The pilot process seeks to give all students involved in a University Title IX case access to legal support through a panel of University-sponsored attorneys. In a new program that administrators say is unique to Stanford, the University offers both complainants and defendants up to nine hours of free advice from one of six lawyers specially trained to navigate the Stanford Title IX system.
A year in, the lawyer panel is bogged down in criticism. Students and faculty say the late January dismissal of Crystal Riggins, formerly one of the six attorneys, has eroded trust in the University’s handling of sexual assault and its commitment to transparency.
Riggins made critical comments about Stanford’s pilot process to The New York Times in December. On Jan. 31, Lauren Schoenthaler, senior associate vice provost for institutional equity and access, told Riggins she would not be renewed as a Stanford-sponsored attorney because her “disappointing” public statements indicated a “lack of faith” in the school’s Title IX system.
Despite statements from Schoenthaler and Provost Persis Drell defending the nonrenewal — Drell asked the pilot’s oversight committee for broader review of the lawyer program but stated that she found no evidence of retaliation — community members said the link between Riggins’ dismissal and her New York Times interview is clear. Drell and other administrators have referenced separate concerns with Riggins’ work, but Schoenthaler’s initial dismissal email to Riggins, recently obtained by The Daily, mentioned only “public comments” as justification.
“I was terribly concerned … especially since this is a pilot process,” said Ernest W. McFarland Professor of Law Deborah Rhode, who specializes in legal ethics and met with Drell about the issue in a small group. “The University should be welcoming criticism.”
Students and faculty were troubled not only by Riggins’ removal but also by Stanford’s rhetoric.
“This woman is still representing two students currently,” said Katipamula, who discussed Riggins with Schoenthaler personally last month. “For Stanford to walk around saying that she doesn’t know how to do her job … is not helpful to survivors who are in this process. It shows Stanford’s lack of attention to details that do have effects on people.”
In a February statement in Stanford News, Schoenthaler criticized Riggins’ “fatalistic attitude that she could not get good results for her clients.” But Riggins told The Daily that all eight Title IX cases she has participated in at Stanford have resulted in some type of sanction for the accused, from a permanent no-contact order to a withdrawal to a multiple-quarter suspension.
Six of the eight cases Riggins was involved in took place last year under the pilot process. Four of the six resolved without a hearing, she said, while the remaining two were hearings in which Riggins’ advisees prevailed.
Lapin disputed Riggins’ numbers but did not provide others, citing students’ privacy.
“I work hard for my clients,” Riggins said. “I get them the best result that I can, and I’ve gotten results in any one of my cases.”
With Riggins gone, none of the lawyers on Stanford’s Title IX panel specialize in representing victims of sexual assault. Three of the remaining five attorneys exclusively advise defendants at Stanford. The other two advise both defendants and complainants, but are described as “criminal defense” lawyers in their biographies on the Office of Community Standards’ website.
For Frederick I. Richman Professor of Law Michele Dauber, an outspoken critic of Stanford’s sexual assault policies, the breakdown of the panel suggests an inequity regardless of Riggins’ departure.
“The University, from day one, has not offered equivalent resources in terms of legal assistance for survivors and alleged perpetrators,” she said, noting the imbalance between complainant- and defense-focused lawyers. Dauber expressed the concern and others in an email to Title IX Coordinator Catherine Glaze ’80 J.D. ’85 last May.
“I also agree that we need to expand the list and to increase the number of attorneys more attractive to survivors looking at the list,” Glaze emailed back last year. “I will be working on that in the weeks and months to come.”
Many familiar with the Title IX process have also urged Stanford to increase the number of free legal hours it provides students. Dauber said she has never spent fewer than 200 hours on any University Title IX case she’s helped with. Lawyers agreed that more time is key.
“Nine hours doesn’t get you anywhere,” said Bob Ottilie ’77, a defense attorney who is not on the lawyer panel but has worked with multiple accused students at Stanford.
Describing lawyers’ guidance as essential to students’ navigation of a complex process, Ottilie and Dauber both called on Stanford to make special training in Stanford’s process available to all attorneys that Stanford students employ.
Dauber also suggested that letting students use University funds to pay, up to a dollar cap, any lawyer of their choice would resolve issues of real or perceived conflicts of interest with Stanford’s pointing students toward certain attorneys.
Case resolution process
Critics say a major concern about the pilot process is its potential to keep sexual assault survivors from obtaining the outcomes they seek and deserve.
The pilot process requires that a three-person panel selected from faculty, staff and graduate students vote unanimously in order to find an alleged perpetrator responsible. The alternative is a non-hearing resolution, in which both parties make an agreement overseen by the Title IX Coordinator.
Out of 30 peer universities — here, a combination of U.S. News top 20 colleges and schools in the Pac-12 — Stanford is one of only four schools that require a unanimous vote from a panel to find responsibility for sexual assault; the other schools are Duke, Notre Dame and University of Southern California (Notre Dame and USC use two person panels, though, meaning a majority is automatically unanimous). Eleven of the 30 schools determine responsibility through an administrative investigation without using a panel.
Other universities do require a unanimous vote to expel a student for assault, but many do not need unanimity to find a defendant responsible.
While Dauber said she does not disagree with the higher standard for expulsion, she believes that Stanford harms victims seeking help by tying responsibility — and accompanying lesser remedies — to a unanimous decision as well. Without a unanimous finding, the complainant is no longer entitled to interim accommodations they may have received during their case, such as a no-contact order.
“You could roll the dice and try to go to a hearing and take a risk that you won’t win,” Dauber said. “If you lose, you lose everything … It’s a huge risk.”
“The victim needs three votes to prevail,” she added. “The alleged perpetrator only needs one. There’s an inherent inequality.”
The administration maintains that the unanimity policy is in place to, in Schoenthaler’s words, “fairly balance the rights of the complainant and the accused.” Following the OCR’s Dear Colleague letter, determining responsibility in campus sexual assault cases requires only the “preponderance of evidence” standard used in most civil cases rather than the “beyond a reasonable doubt” standard used in criminal ones; in other words, panelists find a student responsible if they believe an allegation is more likely than not to be true.
“With a three-person panel, unanimity to find responsibility is important given the lower burden of proof and the fact that Title IX proceedings lack some safeguards that people accused of sexual assault receive in the regular criminal process,” Schoenthaler wrote. “Ultimately, the task force wanted a process that provides a high level of confidence in the accuracy and fairness of outcomes.”
Discussing Stanford’s choice of a panel rather than an administrative investigation, Schoenthaler said panel members serve over the course of several years in order to ensure more “informed and consistent” decision making.
“Using panels with several members rather than a single decision-maker (as some universities do) is fairer, as it reduces the likelihood of an idiosyncratic result,” she wrote.
Stanford’s non-hearing resolution option has also drawn criticism. The University’s sexual assault task force recommended the non-hearing resolution as a way for students who agree on claims and sanctions to avoid a long and stressful hearing process. But some argue that survivors may feel pressured to choose non-hearing resolutions — which made up 13 of 19 total cases resolved under the first year of the pilot process — with less than satisfaction.
Dauber believes that the unanimous vote required for a hearing to result in a no-contact directive could push sexual assault victims to choose an informal resolution so that “they don’t walk away empty-handed.” Students who want, above all, to be separated from their assailants might decide that the non-hearing resolution is a safer bet, she argued.
Some also worry that the pilot process’s nine-hour cap on free lawyer hours could push both complainants and defendants toward a less-than-desirable but quicker non-hearing agreement.
Schoenthaler defended non-hearing resolutions’ effectiveness in Stanford News. She noted that one non-hearing agreement resulted in a student’s withdrawal and that Glaze, the Title IX coordinator, “works actively to avoid [pressured resolutions] by checking in with students about their comfort level with an outcome.” However, she added that the pilot process committee will review the non-hearing component.
While many criticize Stanford’s Title IX process for failing victims of sexual assault, some — like Ottilie — say it also does not do justice to the accused. As a defense lawyer for three Title IX cases under the new pilot process, Ottilie believes the University has failed to uphold the rights of defendants and displayed bias against them, despite the fact that all three of his clients were ultimately acquitted or not charged.
Before the pilot process, Ottilie said, students accused of sexual assault received more initial detail about the allegations against them: His clients often received the complainant’s full statement as a starting point to build their case. Now the “notice of concern” that first alerts students to a Title IX investigation against them is a shorter summary, which Ottilie said is difficult for defendants to respond effectively to. After the Title IX Office finishes its investigation phase and officially charges something, both the accuser and the accused get to see all of the statements and evidence gathered; parties can respond at length to the evidence, but parts of the response may be rejected.
According to Lapin, a notice of concern includes the name of the complainant as well as the allegations made, their approximate dates and the policy violations they may indicate. Previously, she said, the “concerns” given to the accused ranged from a complainant’s statement to an oral report summary from the Office of Community Standards.
Ottilie took issue with a lack of specific dates or other identifying details attached to initial bullet-point allegations. He cited one case where a student asked Title IX staff to narrow down the date of an accusation to at least a single calendar year, given that he dated his alleged victim for multiple years. According to Ottilie, the student was denied.
Ottilie also questioned the neutrality of the University’s testimony-gathering. Both parties in a case can submit names of witnesses for the Title IX investigator to interview. But Ottilie was upset by, for example, Stanford’s declining to interview an accused student’s psychiatrist. According to Ottilie, the student had spoken contemporaneously with the psychiatrist about his ex-girlfriend allegedly sexually assaulting him. The psychiatrist could have supported the male student’s claim against his accuser, Ottilie said. In the end, he explained, the Title IX Office did not file charges against either student in the case.
“That’s a bias,” Ottilie said of the psychiatrist not being interviewed. “That’s personnel, not the rules. But the rules precluded my client from doing those interviews on his own.”
Lapin said Stanford “discourages” students from interviewing their own witnesses to avoid potentially biased or incomplete witness statements; however, documents shown to The Daily indicate students are fully prohibited from gathering their own statements when the Title IX Office declines to.
One defendant in a Title IX case was also uncomfortable with the Title IX Office’s practice of not recording interviews for its investigations. In a letter to administrators provided to The Daily, the student cites Stanford’s refusal to record as the main reason he opted to communicate only in writing.
Lapin said the Title IX Office does not record complainants’, defendants’ or witnesses’ interviews for privacy reasons.
“Recording them is more intrusive and intimidating than having a conversation while taking notes,” she wrote.
The current Title IX process will continue as a pilot program until August of 2018, at which time the task force will submit its final recommendations on the policy and how the University should proceed.
“The idea now is to look at the adjudication process in place and compare [it] to the old policy and policies at other schools in order to see what we think made a difference and what we think still needs to be tweaked,” said McKenzie, who will graduate the year the pilot ends.
Meanwhile, students, faculty and other Stanford community members continue to be vocal on the issue of sexual assault in hopes of bringing about further change.
Advocacy for sexual assault policy reform that ignited with Francis’ call for protest in 2014 has persisted. Following the verdict on now-infamous former student Brock Turner’s case, more than 160,000 signed a petition demanding that the administration publicly apologize to the victim, offer accommodations for her rehabilitation and increase resources available to sexual assault victims on campus. A petition for Riggins’ reinstatement has gathered over 1,600 names.
Lapin said Stanford maintains its commitment to community feedback in developing its policies. The committee charged with reviewing the pilot process continues to accept comments with an online form.
Some are less sure of the University’s ability to respond to concerns adequately and promptly.
“To be fair, I think the administration is aware of a lot of issues,” Katipamula said. “But I think there’s a difference between awareness and proactively doing something about it.”
Contact Cindy Kuang at ckuang ‘at’ stanford.edu and Hannah Knowles at hknowles ‘at’ stanford.edu.
This post has been updated to clarify that, while Notre Dame and University of Southern California also require a unanimous panel vote to find responsibility for sexual assault, the size of their panels differs from Stanford’s.
A previous version of this article referenced a psychiatrist that, according to Ottilie, a defendant had spoken with about his accuser’s alleged abuse against him. In fact, Ottilie says the student talked to the psychiatrist about alleged sexual assault against him. The Daily regrets this error and has added additional information from Ottilie.