From: Chris Griffith
Date: Sat, Jul 9, 2011 at 10:24 AM
Subject: Response to June 20, 2011 Letter
Dear Mr. Shibley,
As promised in my email last evening, I’m responding to the concerns raised by FIRE. Thank you for your letters of May 4 and June 20, 2011 to President Hennessy. He has asked me to respond to you on behalf of the University. Your letters raised specific concerns regarding Stanford’s handling of [REDACTED]’s disciplinary matter, as well as general concerns regarding Stanford’s burden of proof for sexual assault matters, Stanford’s sexual assault policy and the Office of Judicial Affairs’ training procedures.
I am in receipt of the FERPA waiver that you sent to us from [REDACTED], and understand that he has permitted Stanford to discuss with FIRE his pending disciplinary matter. Although we are permitted to do so, the Office of Judicial Affairs is of the view that our primary relationship is with the student going through the process. We welcome our students to have advisors to assist them in our process, but we focus our communications directly with the student. [REDACTED] is welcome to provide FIRE with a copy of his appeal finding (which appeal is currently pending). The issues FIRE raised in the letters of May 4 and June 20, 2011 relating specifically to [REDACTED]’s matter will be substantively addressed there.
With regard to the general concerns raised by FIRE concerning Stanford’s changing of the standard of proof for certain types of cases (sexual assault, sexual harassment, dating violence and stalking), I offer the following comments. First, with regard to the lowering of the burden of proof from beyond a reasonable doubt to a preponderance of the evidence standard, we recognize that FIRE believes that a “clear and convincing” standard is the appropriate standard for sexual assault matters. Stanford was in the process of reviewing our standard of proof for all disciplinary matters at the time the Office for Civil Rights issued its April 4, 2011 Dear Colleague letter (DCL). That letter requires each school subject to Title IX to adopt the preponderance standard for sexual harassment and sexual violence disciplinary hearings:
[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard ( i.e. , it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard ( i.e. , it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.
OCR DCL April 4, 2011, p. 11. Accordingly, at the time the DCL was issued, Stanford took immediate action to conform our standard of proof (in Title IX-related cases) to the burden of proof effectively mandated by the Office for Civil Rights.
We recognize and appreciate your concern regarding the application of the changed standard of proof to a pending case. Given the language of the DCL quoted above –“[g]rievance procedures that use [a] higher standard . . . are not equitable under Title IX” – we concluded that we did not have the discretion to continue a matter under a higher standard of proof.
With regard to your concerns about Stanford’s sexual assault policies and the Office of Judicial Affairs’ training, we appreciate your review of the materials and the feedback you have provided to us. This summer we will be reviewing our sexual assault and sexual harassment policies, and we will take under advisement your language change recommendation in a manner similar to Duke’s recent clarification. Similarly, this summer we are revising our training procedures and materials for the Office of Judicial Affairs.
We take the procedural and civil rights of our students very seriously. We appreciate that FIRE does too.
Very truly yours,
Associate Vice Provost
Dean of Student Life
206 Old Union
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