Stanford’s Title IX Policies Fail to Protect Student Survivors

Stanford’s Title IX Policies Fail to Protect Student Survivors

Stanford’s Title IX Policies Fail to Protect Student Survivors

The university’s unique rules add incentives to dismiss cases and reverse disciplinary actions, potentially allowing sexual predators to remain on campus.

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In October 2021, a freshman at Stanford University, whom we will call Sarah, went to an on-campus party. She met another freshman, whom we will call Alex, and they danced and talked. The next day, they met up again, walked around campus, and then went back to his dorm room. They both consented to having sex, and Sarah asked him to wear a condom. They argued about it. She told him she’d leave if he didn’t wear a condom, so he eventually put one on. As things progressed, she says, she asked him to stop and to slow down because she was in pain, but he wouldn’t. She left bleeding and with hickeys that lasted for nine days.

She said that at some point he had also taken off the condom. This is called stealthing, which is illegal under California state law and considered rape under Stanford’s Title IX policy. Title IX, the federal legislation that prohibits gender-based discrimination, provides the first level of guidance for how universities address sexual misconduct. By nature, Title IX proceedings are a complex and invasive process for all involved, but Stanford students who choose to go through the Title IX process are met with a particularly difficult system that can deter investigations and prevent the expulsion of students accused of sexual misconduct.

Sexual assault at Stanford is frighteningly common. According to a survey conducted by the university in 2019, nearly 40 percent of female undergraduate students and 14 percent of undergraduate men experience nonconsensual sexual contact by their fourth year. Careful examination of Stanford’s Title IX policy and conduct of university officials reveals a pattern in which cases are often resolved before they can reach the point of a hearing or investigation. Without a hearing or investigation, there can be little disciplinary action, even for the most egregious cases of sexual violence.

Two days after the assault, Sarah turned to a resident assistant in her dorm and told her what happened. As a mandated reporter, the resident assistant disclosed the incident to the Sexual Harassment/Assault Response & Education (SHARE) Title IX Office. A member of SHARE reached out to Sarah in an e-mail, and they offered to provide Sarah with supportive measures such as counseling services or help getting extended deadlines on assignments, and to meet with her if she wanted to pursue further action. At that time, Sarah chose to meet with YWCA @ Stanford, an independent, on-campus nonprofit that offers support to survivors at Stanford, instead of SHARE.

Sarah began meeting with Christina Franzino, director of Client Services, and Miranda Tuttle, outreach and student resources manager at Stanford’s SHARE in April 2022. She told Franzino and Tuttle what happened with Alex in detail and that she knew other students who said they had similar experiences. E-mail correspondence shows that the Title IX office knew of at least two other individuals who said Alex had assaulted them.

After several meetings, Franzino and Tuttle presented Sarah with two options: an informal or formal resolution. Informal resolutions require no investigation or hearing and are typically conducted when there is “no significant factual dispute between the parties.” Formal resolutions include cases that fall under the federal Title IX policy, as well as similar proceedings based on California regulations and university policy, called SHARE hearings and investigations. At the time, neither seemed desirable to Sarah. “It’s not just like you drop off your facts and leave and go back to your life,” said an RA, who attended meetings with the Title IX office alongside Sarah.

In Sarah’s case, if Alex were to be found responsible, it would “likely warrant separation/termination or expulsion” from the university. But to reach that conclusion, the Title IX office has to conduct a formal investigation, a process that can take up to four months from the time a student files a formal complaint. “They told me [the formal resolution] would be long, that it would be emotionally taxing,” Sarah said. “They told me that I should only pursue it if I was really sure that was the right thing to do.” Both sides are required to submit evidence, including phone and e-mail records and testimonies from friends and witnesses. If there is sufficient information to indicate a policy violation, there is a live hearing with cross-examination. Under Stanford’s policy, the allegations from multiple students, which are called an “aggravating factor,” would have likely guaranteed Alex’s expulsion if he were to be found responsible.

But Sarah was not eager to go through the formal process, and the office failed to make the implications of the hearing clear to her. “I feel like they latched onto the fact that I really was worried about the cross-examination,” she said. Sarah was under the impression that Title IX proceedings had the same legal consequences as a real trial because words like “cross-examination” and “trial” were used.

The outcomes of the hearing process are administrative, not criminal, and being found responsible for sexual assault through a Title IX proceeding does not have legal implications. But without her going through the investigation and hearing, very few accommodations could be made for Sarah. Alex could still enroll in the same classes, live in the same dorm, and attend the same social events and parties as Sarah, if she did not commit to the formal resolution process.

The informal process would be less intensive for her—and the others involved—but wouldn’t match the severity of what happened. In practice, an informal resolution could include mediation or a no-contact directive. Yet even under a no-contact directive, students are permitted to be in the same room, undermining its intention to keep students apart and prevent re-traumatizing experiences. “There was no easy option. It just seems like if this happened to you, you have to make it your life or just hold that,” the RA said. Sarah wanted Alex to be expelled so what happened to her wouldn’t happen to anyone else, but all the hoops she’d have to go through didn’t seem worth it.

After two months of meeting with the Title IX office, Sarah decided that neither option was desirable, but the Title IX director, Stephen Chen, decided that the office would conduct an intervention with Alex regardless of Sarah’s wishes. This is not unusual for the Title IX office to do in cases they see as serious policy violations. “It is not uncommon for the university to receive a report of unwanted sexual conduct under circumstances in which the subject of the alleged unwanted conduct does not want the university to investigate or take action,” Chen wrote in an e-mail. “The goal is to address the reported behavior to the extent possible while honoring the wishes of the complainant.”

Sarah asked for more time to think things over, but Franzino said she needed a response by the next day, so they could meet with Alex by the end of the week. Before that call, Sarah felt like she was in control of the situation. “The biggest loss of trust occurred on that phone call, when they said they were going to intervene,” Sarah said. “That was when it kind of felt like I didn’t have a choice anymore.” In response to Sarah’s hesitation, Franzino offered to only share non-identifiable information about her experience with the assault with Alex. “I don’t know how much information is non-identifiable if it’s a specific instance of sexual assault,” Sarah told me, but she agreed to the intervention under that condition.

A few days later, Sarah reached out to Franzino again to discuss a no-contact directive between her and Alex. She feared for her safety. A close friend of Alex had allegedly tried to convince her that all that had happened with Alex was a miscommunication. Sarah told Franzino about this, and she says Franzino told that it was an “aggressive” move to file a no-contact order if Alex had not reached out to her. The Stanford Title IX office declined to comment on the conduct of their employees or the specifics of Sarah’s case in order “to protect the privacy of the individuals involved,” wrote university spokesperson Dee Mostofi.

The Title IX office’s response does not reflect how many Stanford students react to sexual violence. Social ostracization is one of the few tools students have against university inaction against sexual violence. An RA who lived in the same building as Alex last year told me that Alex was blocked from rushing several fraternities on campus in response to multiple allegations of sexual assault.

Since 2020, Stanford’s Title IX and SHARE procedures have assumed that students who are found responsible for aggravated sexual assault, rape, or relationship violence that causes “serious injury” will likely be expelled from the university. Chloe Neely, an attorney who specializes in Title IX and victims’ rights litigation, sees the assumed expulsion for serious misconduct in the policy as a particularly hard line against sexual violence compared to other universities. “Aspirationally, this is a great policy for protecting victims and survivors of sexual violence,” said Neely. “In terms of a statement that a university is not going to tolerate sexual violence, this is about as strong as I have seen in my practice.”

But the implications of this policy are not as obvious as they may seem. Neely questions how such a strong policy can affect other parts of the Title IX process. “If you don’t find someone responsible, then you don’t have to reach this presumption. And so, how is that going to impact the likelihood that someone will be found responsible in the first place?”

Neely’s suspicions are confirmed by the sanction section of Stanford’s Title IX policy. The university stipulates that if there are “significant mitigating circumstances,” the disciplinary sanction for severe offenses can be changed. These mitigating factors are described as when an accused student “did not have an intent to violate University policy,” “has taken responsibility for their actions,” or “other considerations that a reasonable Hearing Officer would rely on.” In practice, an apology could be a sufficient mitigating factor, turning an expulsion into a quarter-long suspension or even a combination no-contact directive, loss of campus privileges, and mandated counseling. Every person consulted about this policy from Title IX lawyers to survivors’ rights groups to Stanford students had never seen or heard of a policy phrased like this before. This policy is one of Stanford’s own making and is not mandated by federal or state policy.

“I think that this policy on its face appears to be a really hard line against sexual violence, saying that Stanford is not going to tolerate it and that people will be punished severely. But when you look at the mitigating factors, they’re extremely broad,” Neely warned. “Pretty much anything under the sun can qualify as a mitigating factor.” Several Title IX lawyers consulted about this policy agree with Neely that, in practice, Stanford could be using this policy to avoid expulsion, thereby creating a loophole for sexual predators to remain on campus and affiliated with the university.

Others see the policy as potentially an attempt at restorative justice. “A lot of my clients, they often don’t want people to get expelled, when it’s harm that has happened in community,” said Kel O’Hara, a staff attorney at Equal Rights Advocates who works frequently with queer students. “They want to feel safe. They want to feel like they have the support that they need, and they want the other person to change their behavior and learn to do better. But they don’t necessarily want them to get kicked out.” For them, “how people choose to respond to the harm that they’ve done” is the key to this being a restorative policy.

In the past two years, there have been only 15 SHARE hearings or investigations and four other Title IX cases out of 312 reported cases. Of the 30 cases involving nonconsensual intercourse and relationship violence that potentially warrant expulsion, only one student was expelled for recording and distributing sexual activity. The four non-SHARE Title IX investigations that found the accused party responsible involved sexual harassment in the workplace or an academic setting, a process usually involving staff and faculty.

Policies like Stanford’s add another layer of protection for the university and accused students in a process that is already full of obstacles for student survivors. During the 2020–21 school year, half of the cases that led to Title IX investigations, SHARE hearings, or SHARE investigations were dismissed. Comparatively, in the two years before this policy was implemented, there were 28 Title IX investigations, and 20 people found responsible. Sanctions at this time included two student expulsions and six suspensions, ranging from one to five quarters.

Under the Biden administration’s new regulations, Stanford is set to rewrite their Title IX procedures for the next academic year. The new regulations have celebrated by survivors’ rights groups as an overhaul of the Trump-era changes. According to Inside Higher Ed, the proposals would “change how colleges investigate reports of sexual assault, make it easier for victims to report sexual harassment, end the requirement for live hearings and expand protections for LGBTQ+ students.” But they won’t prevent policies like Stanford’s from determining how universities handle sexual assault cases. “For justice to happen, there has to be some level of change that happens within the institution,” said Sarah, “so that people can feel like they can come forward to Title IX and figure out how to be at peace with themselves again.”

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