Title IX complaint filed after 8 years raises questions about due process at Stanford

The College Fix and The Stanford Daily reported this week on a controversy over the Title IX process at Stanford University, where an alumna recently filed a Title IX complaint against an alumnus for an alleged sexual assault while they were both enrolled. While the case is somewhat unusual in that it involved two people who no longer attend the university, the even more unusual part is that the alleged offense was supposed to have happened nearly eight years ago.

The Stanford Daily focuses on the accuser’s interactions with Stanford’s Title IX office, who she says gave her indications that they could exercise some jurisdiction over the matter and potentially punish the accused to some extent through banning him from returning to campus, participating in alumni events, and so forth, but later said that they did not have jurisdiction. She also characterized the Title IX office as “disorganized,” “impotent,” and “a mess.” Stanford Title IX Coordinator Catherine Glaze reportedly disagreed with those criticisms.

From our outside perspective, it wouldn’t be surprising at all if Stanford’s Title IX process is flawed. Indeed, my short book, “Twisting Title IX,” begins with an anecdote about a Title IX case at Stanford for which “a mess” would be far too charitable a description. The school’s sexual misconduct policy, while not as bad as many, only received 12 out of 20 points from FIRE — earning a “C” grade — for providing due process protections. Stanford’s policy manages to entirely omit the fairly hard-to-forget principle of “innocent until proven guilty.”

Stanford’s policy manages to entirely omit the fairly hard-to-forget principle of “innocent until proven guilty."  

And just this week, Stanford reached a resolution agreement with the Department of Education’s Office for Civil Rights resulting from a federal investigation of its Title IX policy, though the policy changes seem fairly minor as these things go. Most puzzling was the requirement that Stanford remove the word “reasonably” from its statement that those involved in the Title IX process have “the right to be reasonably protected from retaliation and intimidation.” While the word “reasonably” likely did not need to be included in the first place, its removal won’t make much difference unless both the federal government and Stanford actually wish those involved in the process to be unreasonably protected, which would make no sense.

The question of whether a college should have “jurisdiction” over graduated alumni is an interesting one. Being denied the ability to engage in alumni events or visit the alma mater may not be too big a deal for some people, but for others, especially for those who might be interested in teaching or research, or involved in professional fields with a relationship to academia, it could pose a substantial barrier. (Were I unable to speak at my own alma mater of Duke, that would certainly affect my career, for example, as I have spoken at the law school for each of the past two years.) And it’s even more significant, of course, if a sexual assault finding is placed on the record that colleges share with employers throughout one’s life. Colleges are in a position to do significant damage to their alumni, should they choose to do so. So if they do decide to exercise that power, they need to follow a just process.

The problem is that a college’s ability to provide a just process to alumni — either accused or accuser — is hugely constrained and gets more limited with each passing year. Colleges can require (within limits) active students and employees to testify as witnesses, for example. But Stanford investigators can do precisely nothing to actually force outsiders, including former students or employees, to talk to them if they don’t want to. If a critical witness does not wish to cooperate, he or she doesn’t have to. That by itself can easily make a fair hearing impossible. And, of course, recollections of what happened degrade or change over time, as any lawyer who deals with eyewitnesses knows. After eight years, even the most well-meaning truth-teller is going to have a hard time giving an accurate account of what happened. Physical evidence is also likely to be nonexistent, either through the normal destruction of records (such as dorm entry logs, closed-circuit camera footage, and the like), the inability to perform forensic tests such as sexual assault evidence kits, the inability to examine the crime scene, or other factors.

These show-stopping complications are a major reason why most crimes, including rape in many states, have statutes of limitations that prevent prosecution after some number of years. (In 2016, California eliminated its 10-year statute of limitations on rapes committed after January 1, 2017, in the wake of the Bill Cosby allegations.) Of course, those statutes are not binding on sexual assault allegations at a private university like Stanford. But the statutes of limitations are not there because a crime stops being a big deal after a certain number of years. They exist because painful experience has shown that after a certain amount of time, it is all too likely that any trial will not be fair — even with the coercive power of the state to help with the investigation, let alone privately employed university administrators whose only power over members of the public is to ask nicely for cooperation.

As is so often the case in these immensely sad situations, there is no answer available that is likely to satisfy everyone. Given that the alleged assault took place eight years ago, it’s likely that going the route of courts and law enforcement would be the only real possibility for bringing the alleged perpetrator to justice, given their far greater investigatory powers and the ability to compel witness testimony under oath. Title IX is simply the wrong tool to try to address this kind of situation, and no amount of “twisting” will make it sufficient. Colleges and universities are doing neither themselves nor their students a favor by causing them to believe otherwise.