What Stanford can do to limit the harm from DeVos’ Title IX changes

May 28, 2020, 1:26 a.m.

On May 6, the Department of Education, under the leadership of Secretary Betsy DeVos, released new rules governing the handling of sexual assault and harassment cases under Title IX. The rules include several concerning changes. They stipulate that universities allow cross-examination in their proceedings, enable schools to ignore reports of off-campus sexual misconduct, narrow the definition of sexual harassment and allow universities to use a higher burden of proof for cases of both sexual assault and harassment. The department released predictions that these changes will result in a 32% decrease in investigated reports of sexual misconduct.

Although these rules are being challenged in court, they are expected to become federal law by Aug. 14. While Stanford must comply, we believe there are two steps the administration can take to minimize the harm these changes will cause: the implementation of a commenting period and an exploration of the various ways compliance to new Title IX regulations can take place.

Student commenting period

Any changes the University plans on making for compliance should be subject to a formal community commenting period. 

Stanford announced its plan to implement a pilot program to comply with the new rules by the August deadline. This pilot program will, at least initially, govern the process through which all cases after Aug. 14 are investigated. However, currently, there is no plan to give all community members an opportunity to comment on designing the new process, although Provost Persis Drell stated that faculty and student leaders would be consulted.

The federal Aug. 14 deadline leaves limited time for community comment. But we are nonetheless concerned that dismissing the first-round implementation of the new Title IX regulations as a mere “pilot” underplays the significance of the new procedures that will be put in place.

All Title IX cases beginning after the Aug. 14 deadline will be investigated under this new process, which makes it all the more crucial that the larger community has the opportunity to provide input. The pilot program will not be used exclusively for experimental cases that garner the consent of both parties, but will rather govern all cases of sexual misconduct beginning on Aug. 14. These complainants deserve justice as much as those who file cases during any other time period. Moreover, since the pilot program will likely serve as the foundation for any final implementation of the new federal Title IX regulations, community feedback must be primary rather than an afterthought.

A commenting period of at least a week would provide the opportunity for valuable insight into the community’s needs and wants. Even if a final blueprint for the new process will not be available until later in the summer, student comments on the potential changes the University might propose should still be considered. Title IX policies touch the lives of different parties in different ways, and the University should especially make space for those who have firsthand experience with the process to shape the direction of future changes. An anonymous survey, alongside an open town hall to discuss proposed changes, represents one possibility.

It should be noted that various students previously submitted public comments to the Department of Education after the initial draft of the new rules was released. Sexual Violence Prevention Board members Maia Brockbank ’21, Krithika Iyer ’21 and Julia Paris ’21 circulated a petition for support of their comment, and Associated Students of Stanford University President Shanta Katipamula ’19 and co-director of Sexual Violence Prevention and Ph.D. candidate Emma Tsurkov authored one as well. These comments demonstrate the interest students have in contributing to the discussion of the Title IX process.

Institutional choice

We implore the University to, whenever possible, exploit the opportunity the rules offer for institutional choice to increase the likelihood sexual misconduct is reported and investigated fairly. We outline below four areas where this choice may exist.

First, the rules offer universities a choice between two standards for burden of proof in judging most cases: “preponderance of evidence,” the standard which is currently in place at Stanford and was recommended by the Obama administration in 2011, or “clear and convincing evidence,” a new higher standard that is permitted but not mandated by DeVos’ new regulations. We believe Stanford should commit to continued use of the lower “preponderance of evidence” standard. This standard, which requires complainants to prove that the respondent, more likely than not, is guilty, is used in most civil rights cases

If the higher “clear and convincing evidence” standard is implemented, victims, already reluctant to come forward, may be discouraged from bringing complaints. Sexual misconduct is extraordinarily difficult to prove, even under the lower standard, due to the frequent lack of physical evidence. Therefore, the higher standard, by placing more onus on victims to prove the truth of their claim, may cause them to further lose faith in the Title IX process and refrain from filing a claim at all. 

Furthermore, although the new rules allow for cross-examination as a default practice, Stanford should allow parties the option to opt out of this practice. This is a particularly important modification for Stanford to consider. Requiring cross-examination would demand each party to face questioning, similar to the kind seen in standard trials. Both complainants and the accused would have to prepare for cross-examination, despite the fact that free pro-bono access to a lawyer is limited to nine hours. An additional concern is the trauma cross-examination might inflict on individuals who have recently experienced assault or harassment. Experts, in fact, have amassed compelling evidence that cross-examination can re-traumatize survivors of sexual violence, even as it is regarded as a weak tool in assessing the truth of sexual misconduct claims. 

The new rules would also allow Stanford to drop investigations if complainants transfer or drop out. This heightens the risk that accused parties might bully or harass a complainant in an attempt to force them to leave school so the case is dropped. It also means individuals accused who leave school, who may have concerning patterns of behavior, may harm another individual before facing consequences. It is within Stanford’s ability, however, to guarantee that, unless a complainant voluntarily withdraws from the case, it will continue to investigate all claims, lessening these concerns.

Finally, the definition of sexual harassment has been seriously narrowed, from being defined as “unwelcome conduct of a sexual nature” that is “sufficiently serious” to “severe, pervasive and objectively offensive,” a change that could make it significantly more difficult for victims of sexual harassment to seek justice. The main concern here is that behavior is rarely “objectively offensive.” One ethnographic researcher who focused on the Title IX process at one university between 2018-19 found that Title IX administrators often classified sexual misconduct as “not that bad,” whether it was an unwanted hug or death threats from abusers. Therefore, this narrower definition may provide schools with more leniency to dismiss cases when the sexual harassment described is perceived as not passing this higher threshold, even when it remains harmful.

Nevertheless, Stanford is able to “address sexual harassment affecting its students or employees that falls outside Title IX’s jurisfiction in any manner the school chooses.” Therefore, Stanford can ensure sexual harassment cases that meet the less stringent definition receive appropriate attention.

These are not the only areas where institutional choice may be able to ameliorate the damage caused by the new rules, but they represent some examples of how Stanford can maintain a process that, despite the changes, works to increase reporting and investigation of sexual misconduct. We hope Stanford will review these proposals, alongside those made by the broader community, prior to the launch of the pilot program on Aug. 14.

The Vol. 257 Editorial Board consists of Claire Dinshaw ’21, Malavika Kannan ’23, Layo Laniyan ’22, Adrian Liu ’20, Jasmine Liu ’20 and Willoughby Winograd ’22. 

Contact the Vol. 257 Editorial Board at opinions ‘at’ stanforddaily.com.

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