End the Title IX Inquisition

End the Title IX Inquisition

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Stanford deserves better than a witch-hunt aimed at the university’s oldest institutions, focussed more on vengeance than justice.

Stanford has suspended its own band. The university is considering abolishing Full Moon on the Quad, a tradition that has existed almost since Stanford was founded. The Title IX Office is purportedly bent on evicting Greek life.

The Farm is subjected to a modern-day inquisition where the Title IX office is investigator, prosecutor, judge, and jury. It has reached for bigger targets this year, examining and systematically gutting some of the university’s core institutions. This new crusade is a huge shift from the law’s original intent; Title IX was designed to solve the very real problem of explicit gender discrimination from University officials in areas like athletics and admissions, where the government tied compliance to federal funding.

Hiding behind the excuse that the federal government requires it to act, the Title IX office has morphed into a pseudo-branch of the criminal justice system, playing judicial hardball and leaving victims of its crusade with little or no recourse. The office’s inquisition-like reach has allowed it to chase after the biggest fish it can find; it propagates a warped image of justice that skirts basic tenets of fairness and ignores the individuals and organizations whose reputations it has destroyed. Campus activists have helped lend legitimacy to this militant rampage by decrying opposition as “protect[ing] abusers and silenc[ing] victims”, allowing the office to scapegoat and eliminate everyone but the university itself. Some of the damage caused is the result of federal mandates and some stems from Stanford, but one thing is clear: it is time for a national and campus discussion on Title IX.

The Title IX regulatory regime’s first major flaw is its use of the preponderance of evidence standard – i.e. a ‘more likely than not’ threshold – in determining guilt. The Obama Administration imposed this rule in 2011. While the government (somewhat) appropriately uses this standard to determine whether schools should lose funding for alleged Title IX violations, its application to Title IX investigations of students and organizations insults fundamental notions of fairness. Even the Supreme Court declared that preponderance is only suitable when “society has a minimal concern with the outcome” of a private suit, a description that bears little resemblance to the barrage of national media attention sexual assault has received. These hearings determine whether a Stanford student or institution is allowed to stay at university.

When evidence is often scant and based on ‘he-said, she-said’ narratives, it is unacceptable to use an exceptionally low standard of proof to make judgements that lead to a student’s expulsion, deny a student group the right to free association, or irreparably eviscerate a student’s reputation. While the Provost’s proposed changes to sexual assault policy have restored some due process considerations, no similar measures have been applied to investigations of campus institutions such as Band. This leaves student groups particularly vulnerable to the whims of the office. Title IX was created to determine whether universities should receive federal dollars, not to dispense fair and equal justice to those people it now indicts behind closed doors; this institutional design shines through in its perpetual neglect of due process.

Stanford likely cannot change Title IX’s standard of proof. However, one would think that the university would still attempt to make the process as fair as possible for students and organizations. This rational individual would be wrong. The second problem with Title IX stretches far beyond principles about legalistic standards of guilt. Stanford’s application of Title IX is ridden with serial incompetence, atrocious procedural guidelines, and a blatant disregard for the own rules it is supposed to follow. To begin, the institution is unbelievably opaque. It is not clear what evidence Stanford might allow into an investigation or hearing, since its own policy allows “broad discretion”; if the university “does not have the expertise” to consider a piece of information, or worries about “cost considerations”, it will be discarded. Although the Provost’s proposal implements some evidentiary reforms for sexual assault cases, it does not extend protections to student organizations. Let’s pause for a moment and consider this utter evidentiary absurdity: Stanford must impose a low standard of proof yet its rules flippantly disregard consideration of evidence due to concerns about expertise and cost!

Moreover, Title IX violates another basic tenet of justice, in that the people deciding whether evidence is admissible are the same people who determine whether an organisation like Band is guilty. No other judicial system in the US follows this procedure; it allows the office even greater discretion in throwing out evidence that would render the decision it already wants to make less clear-cut. It is especially important that Title IX use transparent and independent evidentiary rules given its low burden of proof, a lack of administrator training, and enormous external pressure from the government and the media. The lack of such transparency is inexcusable.

The Title IX office’s standards are lax and give the university enormous leeway in securing the punishments it wants. It is therefore somewhat incredible that, despite such standards, Title IX still ignored its 180-day limit when investigating Band, relying on the flimsy justification that Band’s violations have continued over time. This is despite the fact that the vast majority of the Title IX office’s evidence against Band stems from events that allegedly occurred almost half a decade – or about 1,800 days – ago. Stanford claims that some violations are more recent; unfortunately, the university is not willing to let people see the evidence, or indeed anything but its carefully manicured PR release. Perhaps this reticence is for reasons of confidentiality. That would be supremely ironic, given that the office has been accused of mishandling confidential information and releasing it to other university bodies, such as ResEd and OAE, without people’s consent. Students only told the Review about this on the condition of anonymity, however, for fear Title IX would use its enormous powers of discretion against them in future.

John Foxe, an English historian, wrote that “defence in [an] Inquisition is of little use to the prisoner, for a suspicion only is deemed sufficient cause of condemnation, and the greater his wealth the greater his danger.” One can’t help but notice the quotation’s relevance to Stanford, especially when the targets are some of the school’s most popular and powerful student institutions. Perhaps most ironically, training for the old Alternative Review Process that worked closely with Title IX branded “logical […] arguments” a sign of guilt. The Review does not know at this time whether Stanford will continue to use the same training source as it implements the Provost’s proposal. If it does, or – as seems likely – at least perseveres in the same spirit, the Title IX inquisition will leave the accused with no choice but to accept their fate.

We appreciate that, to some extent, Stanford has no choice but to comply with the Obama Administration’s strict Title IX guidelines. Given the frightening consequences of such guidelines, however, we hope that the investigations of Band, Greek life and others help lead to a national and campus conversation on whether kangaroo witch-hunts led by university administrations are the appropriate vehicle for dispensing justice. It should not be left to a handful of people to squabble over whether Stanford groups and events should be permitted to exist, with incredible power and few checks and balances to restrain them. Stanford can and should do better. After a year of arbitrary and harmful crackdowns, it’s time for Stanford and the rest of the country to take a step back, abandon its scapegoating, and consider serious reforms.

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