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Documents addressing Title IX evidence, procedures point to discrepancies between statements and practices

As DeVos moves to change Title IX guidance, a look at the rights of accused students at Stanford

Kristen Stipanov / The Stanford Daily

As college sexual assault policies draw increased scrutiny amid ongoing federal changes, documents reviewed by The Daily suggest that Stanford has publicly misrepresented aspects of its own Title IX practices.

Bob Ottilie ’77, a lawyer who has advised students in Title IX cases at Stanford and at other schools, showed The Daily correspondence with Title IX staff indicating that the University prohibited parties in at least two sexual misconduct cases from gathering their own witness statements and in at least one case did not allow parties to review substantial information that had been redacted from evidence prepared for a hearing.

Both of these practices run contrary to Stanford’s public statements regarding the rights of students involved in Title IX cases.

For Ottilie, the discrepancy between Stanford’s statements and practices is just one aspect of broader concerns about the rights of students accused in Stanford’s Title IX proceedings. Ottilie has criticized Stanford’s expectation that accused students initially respond to complaints without full details about the allegations against them, as well as the University’s practices around evidence admission.

He has also argued that the Title IX Office’s decisions in his clients’ cases show bias against male students.

Others defend Stanford’s system, saying it has received undue criticism or contending that Title IX is instead unfair to complainants.

As Education Secretary Betsy DeVos seeks to revise federal guidance on how colleges handle sexual assault cases, her proposed policy changes have garnered approval from individuals who — like Ottilie — have raised concerns about the rights of the accused under existing federal policy as well as at Stanford specifically.

“Understanding that the University is legitimately scrutinized by both parties — one who wants an education free from an assailant on campus, the other who does not want to suffer an unjustified finding of responsibility — the University’s process favors neither the complainant nor the accused,” wrote Stanford spokesperson E.J. Miranda in an email to The Daily.

Statements on evidentiary policies undermined

Ottilie said Stanford has publicly misrepresented an aspect of Stanford’s new Title IX process, launched in 2016, that makes it harder for parties in sexual assault cases to combat evidentiary decisions that they find unfair.

Miranda told The Daily via email that students can collect and submit their own witness statements if they want, but that the University prefers “a neutral investigator to ask questions and summarize responses rather than risking a one-sided or incomplete witness statement.”

“Moreover, the University has received complaints from witnesses that third-party investigators, usually [private investigators], can come across as intimidating to student witnesses, and we remind parties that they are responsible for the conduct of the individuals that they are employing to assist them in investigations,” Miranda wrote.

Policy has not changed under the new Title IX system, he added. Former University spokesperson Lisa Lapin made a similar statement to The Daily last year.

But emails from a Title IX investigator regarding clients of Ottilie’s — reviewed by The Daily and first covered last year along with some of Ottilie’s criticisms of Title IX — show that the Title IX Office not only discourages but also has, at least in some cases, prohibited students from gathering their own statements. Such statements cannot be submitted under the new Title IX process, an investigator wrote.

“[Stanford is] lying because they are ashamed of what they do,” Ottilie said.

Another email reviewed by The Daily showed that Title IX staff declined to interview the psychologist of a male client of Ottilie’s, who had filed a competing claim of sexual assault against a female accuser. Ottilie said the psychologist would have supported the male student’s claims and bolstered his defense.

Explaining its decision in the email to Ottilie, the Title IX Office wrote that the conversation was not relevant because the student’s discussions with the psychologist were not contemporaneous to the alleged incident.

“It was absolutely contemporaneous,” Ottilie disagreed, “because the young man was referred by the University for psychological assistance as a result of his emotional state [after breaking up with his accuser]. That all occurred literally within days of when the relationship ended.”

Ottilie believes the Office’s decision to discount the source indicated gender bias, citing other cases at Stanford and beyond where conversations from long after an incident occurred were still deemed relevant to an investigation of a woman’s allegations. His client was unable to counter the decision: “The rules precluded my client from doing those interviews on his own,” Ottilie said.

Miranda said the University could not comment on the specifics of the case but stated that the matter was “reviewed under an earlier process” and that Stanford now has a third-party “evidentiary specialist” who decides whether a witness has relevant information.

Title IX decided not to charge either party in the case, Ottilie said, meaning the cases were dropped before going to a hearing.

John Clune, a lawyer who has worked on many high-profile criminal cases and advised students filing sexual assault complaints around the country, said he understands the University’s desire to regulate the quality of the investigation by keeping students from speaking with potential witnesses. Having the option to incorporate the extra evidence into proceedings can’t hurt, though, he added.

“If you really want to get the best information out, and there’s a thing the school doesn’t want to investigate, and the student involved wants to provide that information, [the school] should receive it and decide what to do with it,” he said.

Ottilie also disputed University statements about how the Title IX Office redacts evidence. Documentation supported his account.

According to Stanford’s Title IX process guidelines, once the Office has gathered all of its evidence, it removes or redacts information deemed irrelevant or repetitious from the file of materials prepared for a hearing panel. Parties receive a log of the rationale behind the redactions and can make arguments for the exclusion or inclusion of information to the evidentiary specialist, who makes the final decision about what gets forwarded to panel members.

Miranda said the third-party specialist has access to the information redacted by Title IX staff and serves as a check on their judgement. Parties in a case won’t get to see redacted personal details like phone numbers or social security numbers, he added, but other information that the Title IX Office plans to black out will be highlighted for parties to review.

Ottilie, however, said he’s encountered extensive redactions while working on Title IX cases, as well as brief redaction rationales that often only noted that information was deemed irrelevant. He showed The Daily correspondence in which he asked to see any withheld documents and clean copies of statements, writing that he could not challenge the Title IX Office’s exclusions without knowing their substance.

Most attorneys who spoke with The Daily said they had no complaints about redaction practices, though. Clune said he has only seen snippets of identifying information like names or phone numbers redacted. Michael Armstrong ’70, a recently retired defense lawyer, told The Daily that he did not recall any such concerns in Stanford cases he has worked on.

Armstrong, who is best known for representing former Stanford student Brock Turner in his 2016 sexual assault trial, did not respond to further requests for comment.

Previous concerns

Concerns about Stanford’s procedures around Title IX evidence admission aren’t new, and they come from all sides.

Earlier this year, when the Department of Education’s Office of Civil Rights (OCR) released findings from its three-year investigation into Stanford’s Title IX practices, it detailed three cases brought forth by students alleging mishandling of their sexual assault reports. One of the three involved seeming inconsistencies that a complainant dubbed “Student C” encountered with regards to evidence and redaction procedures under the University’s old Title IX system.

Stanford may have created an “inequitable process” for her, the federal report concluded.

Student C, who filed a Title IX complaint against a dorm Resident Assistant, requested anonymity in this article because her identity is not publicly connected to the OCR case.

Like Ottilie, Student C is skeptical of Title IX administrators’ ability to remain neutral, but she believes that the bias swings the other way: against complainants. She told The Daily that she has felt “numb” to DeVos’ federal changes to Title IX guidance because Stanford’s process let her down even under Obama-era practices.

The OCR’s findings summary stated that, in Student C’s case, Stanford allowed the accused student to submit “positive character evidence” as a rebuttal made, in part, to a statement from Student C that was not allowed to go before the hearing panel. Additionally, OCR wrote, the Title IX Office did not redact information about Student C’s sexual history from the accused’s statements — again, on the grounds that it was an acceptable rebuttal — even though it was removed from other witness statements as “prejudicial.”

Information from Student C that “may have clarified” the matter was not given to the panel, the OCR found.

Stanford’s policies generally prohibit use of sexual history and character evidence in cases, except under special circumstances. Responding to the OCR report earlier this year, Provost Persis Drell said that the University would work to make sure these policies are followed.

“It was [the University’s] position — and it continues to be our position — that there were legitimate reasons for the panel to consider evidence in the Student C matter other than for the purpose of providing positive character evidence,” Miranda wrote.

Student C told The Daily she believes Title IX’s handling of evidence favors the accused. She said she was uncomfortable when, over her objections, the Title IX investigator in her case showed the hearing panel evidence that Student C wanted to exclude — arguing to the panel that it should be included because it spoke to Student C’s credibility. Student C was also not allowed to be present while the Title IX investigator spoke with panel members, although she was told her arguments would be relayed.

This account is corroborated by emails between Student C and an administrator.

According to Student C, the evidence in question included a claim that she had a history of accusing Resident Assistants of sexual assault — something she disputes, saying this was her only Title IX case — and a statement by the accused student that he had never masturbated due to his family background.

“[Title IX] allowed the reviewers that would be deciding my case to see everything before asking them to [potentially] decide to unsee something and not consider it,” Student C said. “That’s not how people work.”

Presented with the responding student’s unredacted statement, the panel opted to keep everything.

“Because [the investigator] was the only person there to present these disputes, she was allowed to characterize the dispute however she wanted,” Student C said.

The OCR’s report on Student C’s case notes that the University also declined to include one of her witness interviews after deeming it irrelevant.

Miranda emphasized that Student C’s case took place under a prior Title IX system. He said Stanford’s new Title IX process, by adding the third-party evidentiary specialist, has addressed Student C’s concerns about panelists being unable to “unsee” information.

Ability to respond

Ottilie said the accused clients he mentioned were either not charged or not found responsible by the University. However, he argued that Stanford’s procedures made it difficult for his clients to respond to a complaint effectively.

Former University spokesperson Lisa Lapin told The Daily last year that students receive a “notice of concern” officially informing them of what they are being investigated for, along with the name of the complainant, “approximate dates” of the alleged offense and potential policies they may have violated.

The Title IX Office collects evidence and, following the end of its investigation, decides whether to charge the accused. If it does charge them, it provides an evidentiary “hearing file” to both parties in the case. After that point, new information is only admitted if it qualifies as something unavailable earlier or as “rebuttal” evidence — something that a party couldn’t have anticipated as relevant.

Each party is also allowed to submit a 1,500-word final letter responding to the hearing file. This letter cannot introduce new evidence: Interviews with Title IX investigators are parties’ “opportunity to provide facts about the allegation(s) under consideration,” Miranda wrote.

Ottilie criticized the responding student’s inability to know every claim made about them from the start.  

“The point is, you should get everything before you have to give your everything response,” Ottilie said.

He said the notice of concern is not much to go on compared to the full complainant statement his clients used to receive before Stanford implemented its new Title IX process. Recalling the case in which a male and female student who had dated both filed claims against each other, Ottilie said the Title IX Office would not narrow down the date of the female student’s allegations to a particular year.

“Under the [old process], responding students were given ‘concerns,’ which came in different forms,” Lapin said. “Sometimes it was a statement from the complainant, sometimes it was an email from a reporting party, and sometimes it was a summary from the Office of Community Standards of an oral report. The current process creates an even, consistent playing field for all parties.”

Student C told The Daily that she sees the new, less detailed notice to responding students as an improvement over the complainant statement Ottilie mentioned.

She thinks limiting an accused individual’s information prior to their interview with Title IX forces them to “give their version of events, uninfluenced” while also limiting their ability to “spin a cover story.”

“If a respondent is telling the truth, they would not hesitate to give their version of events as it happened on a particular date — and that does not require knowing what the complainant has said thus far,” she said.

Ottilie, on the other hand, said his clients have opted not to be interviewed by Title IX because they are uncomfortable with the Title IX Office’s policy of not recording interviews and relying only on notes — a policy that Stanford defends as less “intrusive and intimidating” to students.

Ottilie added that he’s been frustrated in the past when additional evidence his clients tried to provide was rejected because it related to something that had been disclosed earlier in the case. Details might not come to light until the hearing file, he said, at which point investigators might surmise that the accused already had the chance to address the issue broadly.

He said that one of his clients became aware — upon reading his hearing file — that the Title IX Office was looking into allegations it hadn’t listed in the original notice of concern.

“The student said, ‘Now that I know what you were concocting with those weird questions I want to give you all this stuff,’ and [the Title IX Office] said, ‘No … just wait and do it with the 1,500-word letter,’” Ottilie said. “In real court, we might come up with 10 witnesses of our own.”

Although privacy rules prevent the University from discussing specific cases, Stanford maintained that the Title IX Office notifies parties of additional allegations if the scope of an investigation grows.

According to Miranda, Stanford’s new Title IX process was meant to close a “loophole” in the old system that allowed parties to provide new information after seeing all of the evidence gathered about their case by an investigation. As a result of that loophole, he added, some respondents waited to give information until later and did not participate in the investigation at its outset.

The new rules preclude “the possibility of gamesmanship,” Miranda wrote.

Stanford’s process gathers information in a trauma-informed manner, as required under what California law calls “victim-centered” processes, he added, saying that all students in Title IX cases have “equal opportunity to share information and appeal outcomes.”

Naomi Rustomjee, an attorney who has advised respondents under Stanford’s current Title IX process, defended Stanford’s system.

“Although, as a defense attorney, I would always want more rather than less due process for the accused… I find Stanford’s pilot program affords significantly more due process for responding students than is the case at other schools,” Rustomjee wrote to The Daily in an email, citing features such as Stanford’s requirement that hearing panels must agree unanimously in order to find a student guilty.

Rustomjee is among a group of attorneys that Stanford now makes available to both parties in a Title IX case for up to nine hours of free consultation. The University-sponsored attorneys became the center of controversy in early 2017 after Stanford dropped a lawyer, Crystal Riggins, from the panel, citing “disappointing” critical comments about the Title IX process she’d made to The New York Times. Riggins, who specializes in representing complainants and declined to comment for this piece, told The Times, “It is very difficult to get a 3-0 decision from a panel, and these young women are terrified and traumatized and just want it to be done.”

Rustomjee noted that she does not necessarily agree with the outcomes of every case but believes that the Title IX administrators at Stanford work to “get it right.”

“That alone is a whole lot more than one can say about other schools’ Title IX administrations,” she wrote.

Title IX versus the criminal system

At the center of national controversy over Title IX policy is the question of how much campus mechanisms for dealing with sexual assault should resemble those used in the criminal justice system.

Debate on the matter heated up in 2011 under the administration of President Barack Obama when his Department of Education issued a “Dear Colleague” letter instructing schools to adopt, among other changes, a “preponderance of evidence” — or “more likely than not” — standard for Title IX cases. Employed in civil court cases, this bar is lower than the “beyond a reasonable doubt” standard needed to find a criminal defendant guilty. The 2011 letter, issued without the public comment period that would have given it the force of law, contained only guidelines — but administrators across American universities have said that the Office of Civil Rights frequently used the document when investigating institutions for potential Title IX violations.

DeVos rescinded the Dear Colleague letter last fall, stating Title IX had overreached under Obama. DeVos then issued interim guidelines allowing schools to use a higher “clear and convincing” standard of proof if they wished.

Stanford Law professor Michael McConnell, a senior fellow at the Hoover Institution, welcomed the announcement.

The Dear Colleague letter “wreaked havoc and injustice all over the country, and it’s time to have some balance,” he told The Daily.

Critics have argued that college Title IX processes exist without procedural elements — such as testimony under oath or the oversight of a trained judge — that offset the lower burden of proof employed in civil cases. Such critics also question the ability of universities to carry out investigations of serious offenses.

Students who filed campus sexual assault complaints have sued schools across the country, including Stanford, for mishandling their cases. In its investigation, OCR identified concerns with how the University handled cases of complainants that filed with the federal office in 2015 and 2016. Stanford pledged to address the concerns in a resolution reached with OCR.

Similarly, accused students have successfully sued their universities or had their sanctions reversed over due process claims. In October, a district court of appeals overturned a University of California Santa Barbara student’s two-year suspension and reprimanded the school for denying him a fair hearing.

In 2016, a male student found responsible for sexual assault by Stanford sued the University for “discriminatory zeal to prosecute sexual assault claims.” Neither the student’s lawyer nor Stanford responded to a request for comment on the case’s current status.

Stanford Law professor Michele Dauber, an activist and prominent advocate for sexual assault victims, argued that those who say their “due process” has been denied in Title IX proceedings are often projecting criminal trial rights onto much less stringent proceedings more comparable to those used for eviction from public housing or the termination of welfare benefits.

“The first word of due process is due, and it means literally, ‘What process is due given the context that we are in?’” Dauber said. “Basically, the courts have said that students are entitled to almost no due process.”

“It sounds more weighty to say, ‘We’ve been denied due process’ than it does to say, ‘We don’t like the way these hearings are run,’” she added.

Clune believes that most colleges have done a good job of ensuring due process for both sides and that the Department of Education’s current push for change is fueled by anecdotal evidence.

McConnell agreed with Dauber that, particularly as a private university, Stanford’s legal obligations to students accused in Title IX cases are minimal. But he said Stanford should go beyond what’s strictly required of them and provide some of the rights the accused would have in court ruling, such as powers of cross-examination. McConnell said he understands the rationale for keeping an accused student from cross-examining their alleged victim — a practice frequently denounced as retraumatizing — but believes that, at the very least, investigators in Title IX cases should be themselves better scrutinized.

“A police officer is always put on the stand in a criminal case,” McConnell said. “Did you investigate this, did you investigate that? … Was there any exculpatory evidence?”

Title IX case outcomes

For advocates of the accused, the seriousness of sexual assault allegations and their consequences mean that University processes merit more rigorous protections than those currently provided for accused students.

John Villasenor M.S. ’86 Ph.D. ’89, a visiting fellow at the Hoover Institution, was recently invited by the Stanford Political Union to discuss his research on Title IX standards of evidence at a campus debate. The research — published in the peer-reviewed journal Law, Probability and Risk — examined the likelihood that an innocent person would be found guilty under either the “beyond a reasonable doubt” or the “preponderance of evidence” standards.

Villasenor concluded that, when shifting to “preponderance of evidence,” the likelihood increased fivefold under the most mathematically conservative model and up to as much as 19-fold depending on what estimate was used for wrongful convictions in court.

Title IX cases may not be criminal, Villasenor said, but they can still hold high stakes for the accused. He cited a New York Times article from earlier this year about a male Michigan State student found responsible for sexual assault in a Title IX process that the Times writer suggested was unfair. After his expulsion was publicized, the student filed a lawsuit claiming the school wrecked his athletic career.

“If an innocent person is subjected to eviction from a degree program, to the loss of an ability to earn a livelihood and to the stigma and resulting lost opportunities that will follow him around for decades — that is an enormously heavy punishment to bear, and a terrible injustice,” Villasenor wrote in an email to The Daily.

Advocates for complainants, on the other hand, believe that schools’ ability to protect their students from sexual predators still falls short and counter that a lower standard of proof is appropriate given that schools are not sending people to jail but rather trying to make their campuses safe for students. Clune, for example, was largely complimentary of Stanford’s policies, although he takes issue with the requirement that a panel vote unanimously to find a student responsible (something victims rights proponents have criticized as unusual among peer institutions).  

“It’s gonna be something that bites Stanford in the long run when they have a student who’s found responsible by two of three panel members and that student goes on to hurt somebody else,” Clune said.

Dauber argued that Stanford and other schools have long delivered overly lenient sanctions for serious offenses. Several years ago, Stanford student Leah Francis ’14 ignited campus protests after likening Stanford’s suspension of the student who it found guilty of assaulting her to a “gap year.” Both parties in Francis’ case went on to file complaints with OCR. The accused is the same student who sued the University in 2016.

Stanford has since made expulsion its default sanction for sexual assault. However, a report released this year by Provost Persis Drell indicated that, in the 2016-2017 academic year, none of the punishments given to students found responsible for assault rose to that level.

According to the same report, there were nearly 200 reports of sexual assault, harassment or relationship violence at Stanford in 2016-2017 across all demographic groups. Of the 58 formal investigations within these categories conducted by the University, 32 resulted in findings of policy violations.

Title IX cases offer more than just sanctions for perpetrators. Agreements between parties in a case can stipulate, for example, that a victim has priority in class enrollment and housing placement, that the accused can’t contact their accuser or that there are certain places on campus the accused can’t go.

Schools may also offer these accommodations as interim measures while a Title IX case is pending.

These interim measures have drawn criticism from defendants’ rights advocates who contend that they undermine access to education for someone who has not been found guilty.

Ottilie said one of his recent Stanford clients was moved out of campus housing for several months as an interim measure and only allowed to visit campus and attend class in the presence of a security guard. The student also had to notify Title IX of all non-class visits, he said, and rarely came to Stanford’s campus as a result of the constraints.

“That’s a great big scarlet letter that says you are an accused rapist,” Ottilie said of the security guard. While the Title IX Office ultimately did not pursue a case against the client, he said, “To this day Stanford [has] never done one thing for him to say they’re sorry.”

Writing to The Daily, Miranda responded that Stanford takes “steps necessary to protect the safety of the campus community when it is placed on notice of significant concerns.” Security guards balance that concern with ongoing access to education, he added.

Clune and other advocates for complainants believe interim measures are necessary to prevent a hostile educational environment for accusers. Prior to the “Dear Colleague” letter, Clune said, many students would simply leave school out of discomfort — sometimes permanently — before their case was resolved.

“Your process becomes completely moot and ineffective if you’re not putting in an interim measure that allows the complaining student to continue to attend,” he said.

Students have joined the debate over Title IX policy as well.

Shortly after DeVos was appointed as Education Secretary, The Stanford Review’s Editorial Board urged her to raise the standard of proof required in campus sexual assault cases, arguing that it undermined accused students’ rights.

Meanwhile, leaders of the Stanford Association of Students for Sexual Assault Prevention (ASAP) have said that Stanford’s policies don’t do enough to hold perpetrators accountable.

Past and current ASSU executive teams have made Title IX policy a key issue in their platforms. Current student body president Shanta Katipamula ’19 and vice president Ph.D. candidate Rosie Nelson pledged in their campaign to push for a wider definition of sexual assault and the elimination of Stanford’s unanimous panel requirement, among other reforms.

“Almost all universities, unlike Stanford, require a majority vote of a panel for both a finding of responsibility and for a sanction,” Katipamula and Nelson wrote.

Looking ahead

On Nov. 16, Education Secretary Betsy DeVos released her proposed changes to the federal policy that guides how colleges handle sexual assault cases. The proposal, if enacted, would narrow the definition of sexual assault, reduce schools’ liability for assaults and let parties’ advisors cross-examine the other party.

Stanford administrators have told the community, however, that little is changing.

“Nothing changes today in our campus Title IX procedures as a result of this development,” Provost Drell wrote in a November blog post after DeVos released the proposal. “We fully intend to continue our efforts to reject sexual violence in our community, to support survivors, to hold perpetrators accountable and to have fair adjudication processes.”

Revisions to Stanford’s student Title IX process are ongoing, Miranda wrote, as any updates will need to be approved by the Office of Civil Rights. He confirmed that an advisory committee has given feedback on the process to Drell, but did not provide specifics. According to Miranda, OCR is currently reviewing changes to Stanford’s sexual harassment and assault policies that were made following the federal office’s investigation.

In addition to flagging concerns with specific cases, OCR’s investigation found areas where the school was not in compliance with federal policy. The Office pointed to issues like insufficient documentation of complaints and a lack of clarity around discipline policies for staff found responsible in a Title IX case. Stanford agreed to address the concerns in its resolution with OCR.

Equal Rights Advocates, a civil rights organization whose clients filed with OCR against Stanford, lauded the federal investigation’s results.

“No student should be denied access to education because of sexual harassment or violence,” said Jennifer Reisch, legal director for ERA, in a press release. “This is an opportunity for Stanford to turn over a new leaf and create a campus environment that is safe and equitable for all.”

As numerous and often-clashing criticisms of the Title IX process demonstrate, exactly how Stanford should create this “safe and equitable” environment remains contentious.

 

Contact Hannah Knowles at hknowles ‘at’ stanford.edu.

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