Updated federal sexual misconduct policies, spearheaded by Education Secretary Betsy DeVos, will provide more protections for the accused, raise the bar for what constitutes assault and lower universities’ liability, according to information obtained by The New York Times.
After DeVos promised to reform Obama-era Title IX regulations late last summer, Provost Persis Drell issued a public statement affirming that Stanford “has no intention of retreating, in any way, on the subjects of sexual assault and harassment.”
And in response to proposed changes unveiled by the Times report last week, Stanford spokesperson E.J. Miranda emphasized that the University’s “commitment to fighting and eradicating sexual assault is unwavering.”
But Miranda did not indicate whether the federal policies emerging under DeVos’ tenure will have any bearing on Stanford’s Title IX policy, calling into question the certainty of Drell’s year-old remark.
“Our goal is a fair and effective adjudication process for all that is in compliance with federal and state laws,” Miranda wrote in a statement to The Daily.
The outcomes of the proposed changes will remain unclear until DeVos puts out official policy, which, following a public comment period, will have the force of law. Though regulations from agencies do not have the same power as legislation passed by Congress, organizations typically ensure that their operations square with those rules via a legal principle known as Chevron deference.
“It is too early to know whether and how Stanford will need to change its procedures,” said Michael McConnell, a Stanford law professor who also directs the University’s Constitutional Law Center. “The actual proposed regulations have not been released, and the New York Times article does not offer much detail.”
However, the Times report does reveal that DeVos’ forthcoming policies could override existing protections for victims at schools like Stanford, despite administrators’ previously stated desires to maintain such protections.
For victims’ rights advocates, DeVos’ proposed alterations to the Title IX process invoke an unfavorable backslide to old policies that prominent sexual misconduct reformists, including Stanford law professor Michele Dauber, have worked hard to overturn.
“This is basically the Trump Administration giving university lawyers and the men’s rights movements their wishlist,” said Dauber, who has helped shape Stanford’s sexual assault policies. “The net effect of [DeVos’ policy] would be to gut Title IX protection for students.”
For Dauber, the most concerning change DeVos is proposing is the revival of cross-examination, a policy by which complainants and respondents can ask each other questions as part of Title IX adjudication.
Dauber, as chair of the Board of Judicial Affairs, led efforts to remove direct cross-examination from Stanford’s Title IX process in 2010. According to her, if Stanford reinstates the policy due to DeVos’ proposed changes, the number of people that report sexual assault will plummet.
“What we found when we had [the cross-examination policy] is that it was so upsetting and traumatizing to survivors that they simply wouldn’t report and utilize the disciplinary process, period,” Dauber said.
ASSU Executive President Shanta Katipamula ’19, whose April campaign platform included a call for better sexual violence policies and practices at Stanford, also voiced concern about DeVos’ proposal to allow schools to modify their evidentiary standards in misconduct cases.
DeVos’ plans include a revision that would allow schools to choose between using a “preponderance of evidence” standard — a relatively low burden of proof which favors the more convincing evidence, regardless of quantity — or a “clear and convincing” standard — which calls for considerably more evidence to find an alleged perpetrator responsible for misconduct. Obama-era policy makes it clear that schools should use the “preponderance of evidence” standard.
For now, Stanford continues to operate under California law, which includes requiring affirmative consent and adheres to the “preponderance of evidence,” or “more likely than not,” standard. Stanford’s Title IX policy is still in step with Obama Administration standards.
Advocates for sexual assault victims like Dauber and Katipamula are fighting to keep it that way and to protect the victims of sexual violence.
DeVos’ policies would further redefine sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” In comparison, the Obama-era guidelines more broadly define sexual harassment as “unwelcome conduct of a sexual nature,” including “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
The policies would also shrink the scope of schools’ responsibility to respond to reports of sexual misconduct — under this new plan, institutions would only be liable if the alleged misconduct occurred on campus. If a grad student was assaulted by another Stanford student in an off-campus home, for example, the University would not be responsible for adjudicating that case under DeVos’ regulations.
Dauber further noted that much of the faculty harassment occurs beyond Stanford’s borders, and that this new policy is apt to provoke legal disputes regarding what misconduct the University is liable for.
DeVos’ regulations would further limit the types of people a victim can report to in order to hold the university responsible to “an official who has the authority to institute corrective measures,” according to the New York Times. This means if a victim reported their assault to an informal advisor, like a Residential Advisor, Peer Health Educator or professor, the University could claim they don’t have “actual knowledge” of what happened and would thus have no legal requirement to investigate.
“These rules make it easier for schools not to be held accountable, and it makes it easier for the perpetrators of sex violence to get away with what they’ve done,” said Katipamula.
The stakes at Stanford
Depending on the text of the final policy, Stanford could see either revisions in its Title IX policy or no change at all. Much of this hinges on whether the policies the Secretary rolls out are elective or mandatory. For example, should DeVos allow universities to choose their own evidentiary standard to determine responsibility in misconduct cases, Stanford, subject to California law, is likely to keep the lower “preponderance of the evidence” standard.
In this case, other American universities may elect to change their policies.
“If these are permissive changes, then Stanford could experience little change, unless it chooses to hold itself to a lower standard,” Dauber said.
Statements from University administrators suggest that if DeVos’ changes are “permissive” rather than mandatory, the likelihood that Stanford revises its policies is very low.
According to McConnell, one thing the Times article makes clear is that DeVos’ policies will, at the very least, give Stanford room to walk back its Title IX policies — if not compel them to.
But if DeVos were to mandate a higher evidentiary standard, Stanford’s Title IX system could see change in favor of respondents.
For McConnell, that change is welcome. He said it would “restore more fairness and balance to [Stanford’s] processes.”
Notice and comment
After DeVos officially announces her policy proposals, a national “notice and comment” period will allow the public to offer the Department of Education feedback. This procedural step will afford DeVos’ policy the force of law.
The “force of law” distinction differentiates this policy from the 2011 Dear Colleague letter, which DeVos seeks to unravel; that document, issued without a public comment period, contained merely guidelines.
Stanford intends to weigh in, according to University spokesperson E.J. Miranda. Even if Stanford is not directly influenced by the Education Department’s policy change, University leadership can lobby for or against changes that would affect other institutions.
“Once there are final proposals, we expect to engage during the comment period as we have done in the past,” Miranda wrote.
Upon issuing finalized policies, the Department of Education must respond to public input submitted during the comment period. Any given policy can be struck down in court if the Department’s explanation for said policy is deemed unreasonable, or if the policy contradicts Title IX. This means more public input may result in more changes to a proposal before it becomes final.
Although anyone can submit a public comment of any length, comments from established organizations such as Stanford are typically weighted more heavily than individual comments. The federal government notes online that “The comment process is not a vote — one well supported comment is often more influential than a thousand form letters.”
Katipamula said ASSU’s focus is on ensuring the University takes part in the public comment period, although she emphasized involvement from the Stanford community in general. She stressed that her ultimate goal was to walk alongside the victims of sexual assault.
“If you are a survivor, I believe you, I support you, you’re not alone, and I as well as the rest of the student government am here to support you and ensure you’re going through a fair process,” Katipamula said. “We’re right there in step with you as we go through this.”
Correction: A previous version of this article incorrectly stated that Michele Dauber eliminated the direct cross-examination policy; she chaired the Board of Judicial Affairs, which did so as a group. A previous version also stated that “mediation,” rather than “direct cross examination,” was the issue at hand. The Daily regrets these errors.
Contact Adesuwa Agbonile at adesuwaa ‘at’ stanford.edu.