The process that Stanford uses to adjudicate Title IX cases has been the focus of several news articles in recent months, giving rise to questions in the minds of many in our community and beyond. Stanford Report asked Lauren Schoenthaler, senior associate vice provost for institutional equity and access, to clarify a few of the greatest sources of confusion and concern.

Why doesn’t the university just leave it to the police to deal with sexual assault cases?

Lauren Schoenthaler is Stanford’s senior associate vice provost. (Image credit: L.A. Cicero)

Stanford is committed to providing a safe learning environment for its students that is free of sexual harassment and violence of all forms. The university always strongly encourages victims to report crimes to the police and stands ready in every case to assist students who make such reports. But under California law, if the victim does not report the incident to the police, the university generally cannot itself disclose the victim’s identity to the police without the victim’s consent.

Regardless of whether there is a police investigation, state law and Title IX require the university also to investigate such cases, not as a criminal matter, but as a student discipline one. Furthermore, Stanford’s Fundamental Standard (i.e., our code of conduct) requires that students respect the rights of others and that failure to do so will lead to sanctions, up to and including removal from the university. As a result, under the authority of both external laws and internal policy, Stanford investigates these cases as student disciplinary matters. The university can and should address these issues for the well-being of the survivor and the safety of the campus community.

Why do Stanford panels evaluating cases of sexual assault require a unanimous 3-0 vote for findings of responsibility?

Starting in February 2016, the university initiated a new pilot process for adjudication of allegations of assault by a student. That process is based on recommendations from a task force established by the provost that sought broad input from our community.   It has three key features that should be understood in context:

• It uses panels selected from a standing group of highly trained faculty, staff and graduate students. Panelists serve for several years, helping produce more informed and consistent decision-making.
• Panelists must determine whether allegations are supported by “the preponderance of evidence”– that is, they are “more likely than not” to be true. This standard is more favorable to complainants than the “beyond a reasonable doubt” standard used in criminal cases, and is mandated both by California law and by the Office for Civil Rights of the Department of Education.
• The three panelists must agree unanimously for the accused to be found responsible. The considerations that led to this requirement, intended to fairly balance the rights of the complainant and the accused, include:
• 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; but it is difficult to assemble a large enough pool of well-trained reviewers to staff panels of more than three.
• 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. For example, the accused is not permitted to directly cross-examine the accuser and cannot have an attorney speak on his or her behalf; instead, accused students must speak for themselves.

Ultimately, the task force wanted a process that provides a high level of confidence in the accuracy and fairness of outcomes. It concluded that could best be obtained through unanimity of three decision-makers, who would deliberate together in order to reach a result.

Why do we read about so much criticism of this 3-0 unanimous-decision rule?

Every process is subject to criticism from both those who think the process is too favorable to complainants and those who think it is too favorable to respondents, and the pilot process is no exception.

For example, KC Johnson and Stuart Taylor, writing in the Washington Post in January, argue that several aspects of the process – including the “preponderance of evidence” standard –unfairly disadvantage the accused. They endorse the unanimous-decision rule, which, they state, constitutes Stanford’s “one fair rule.”

Conversely, Joe Drape, writing in the New York Times in February and, along with Marc Tracy, in December, cites critics of the unanimous-decision rule who worry that it is unfair to accusers, including one who states that this rule makes it “virtually impossible” to get a decision favorable to the accuser.

Now, we already know that the fear that it might be “virtually impossible” to get a decision favorable to the accuser is unfounded. Stanford has had six cases go through the pilot process. In three (50 percent of the time), a panel found in favor of the accuser by a unanimous 3-0 vote. In the other three, the panel voted either 2-1 or 3-0 not to find responsibility. There has not yet been a case where a lone holdout prevented a finding of responsibility – the possibility that concerns critics most.

Still, we understand this concern more generally. I want to emphasize that the university takes seriously concerns from both sides about the fairness of the process, which is why it was designed as a pilot process with thorough review. An oversight committee chaired by Stanford Law Professor Pamela Karlan encourages and welcomes input, which can be provided at this link. It is charged with recommending improvements, and it will be evaluating the unanimity rule along with all other aspects of the process.

What are “non-hearing resolutions” of Title IX cases?

The provost’s task force also recommended a pilot procedure called a “non-hearing resolution” because the sanction is imposed without the need for a full-blown hearing before a panel. The reasoning was that in cases where there is not a significant dispute between the students about the facts or remedies, both parties could obtain fair and appropriate outcomes while bypassing the stress of a hearing. Importantly:

• A non-hearing resolution is available only if both parties want one. If either wishes to have a panel hearing, there will be a hearing before a neutral panel.
• The same range of potential remedies and sanctions is available, and they have the same force and effect as though they were imposed following a hearing.

Do the non-hearing resolutions work? And are there concerns about them?

In the year since the pilot process has gone into effect, many complainants and respondents have chosen to have their case resolved without a hearing. Of 19 charged matters to date, 13 were resolved through non-hearing resolutions (the other six went to hearings, with the outcomes described above). The process has even been used to remove a student from campus.

We believe the extensive adoption of this option has to do with the desire of students to have agency over the outcome and avoid the stress of a hearing in cases where there is no dispute on facts or remedies. One concern is that parties might in some cases accept a non-hearing resolution simply to get the process over with, even if they feel a more appropriate sanction would be obtained through a hearing. The Title IX coordinator is aware of this concern and works actively to avoid it by checking in with students about their comfort level with an outcome. That said, the university again takes seriously this concern and all others, and the oversight committee will review them as part of its evaluation process.

What is the role of attorneys in the process?

Any student involved in Title IX proceedings can, of course, consult with the attorney of his or her choice. But Stanford has gone a step further: to ensure that all Stanford students have access to legal guidance in Title IX student disciplinary matters, Stanford offers assistance provided by no other university. It pays for up to nine hours of attorney time for any student who requests it, using a small group of outside attorneys who have received special training regarding Stanford’s pilot process.

The attorney’s role is not a typical legal representation where the attorney serves as the advocate for his or her client. Rather, the attorney serves as a “support person,” which is an advisory role. Support persons (including attorneys) are prohibited from speaking or drafting submissions on behalf of a student.

Did Stanford not renew one of these attorneys because she criticized the process publicly?

No.  She was not invited to continue as one of the referral attorneys in the pilot process, because of her fatalistic attitude that she could not get good results for her clients in the process, which is not fair to our students.  Additionally, there were other concerns about her work that have been expressed privately to the attorney, and are unrelated to her comments to the New York Times. The decision not to invite the attorney to participate in the second year of the pilot was taken after consultation, including with personnel outside of my organization whose regular responsibilities involve supporting complainants and survivors.  To the extent that email excerpts provided to the New York Times suggest that the decision involved anything other than complainants’ best interests, that is a function of my less-than-artful drafting of the email.

I apologize to the Stanford community for leaving the impression that we are not open to criticism of our process. We can only make improvements through critical review and robust discussion. In fact, the group of referring attorneys was asked to and are continuing to provide feedback on how to improve the process.

What are the next steps in this process for Stanford?

We believe the pilot process that has been put in place is already a major improvement over past approaches. But, again, we hope that all members of our community will continue to express their concerns and suggestions to the oversight committee to help us strengthen it further. They will be working through this spring to provide feedback.

I’d also note that I have only answered some of the questions that are being asked most frequently; a more extensive discussion of our process is provided here and here.

Let me close by saying that, as a former prosecutor of sexual assault and a champion of Stanford’s adoption of the affirmative consent standard here in 2012 (two years before the state of California passed its Yes Means Yes law), I can assure you that we are working hard to end sexual violence on our campus. But we must do so in a manner that is equitable and fair for both parties. The evaluation by the oversight committee provides the opportunity to make our process even stronger.