Amidst too many of its peer institutions taking significant steps back when it comes to campus sexual assault and due process, Stanford University is poised to take steps forward in order to ensure that students accused of sexual misconduct are granted a fair hearing.
Since last summer, a Task Force appointed by Stanford Provost John Etchemendy and comprised of faculty, students, staff, and an alumnus has been reviewing the university’s policies and crafting recommendations for how to better protect all members of the Stanford community. The Task Force released its report last Wednesday, and there are several recommendations worth noting.
Former FIRE intern and current Stanford student Jason Willick noted a few of them in the Stanford Political Journal. For example, Willick writes, the Task Force recommends changes as to how punishments may be determined:
The reviewing panel must be unanimous as to responsibility and unanimous as to sanction where the sanction is expulsion. For lesser sanctions than expulsion, the panel can impose the sanction if two of the three reviewers agree to that sanction.
At many colleges and universities nationwide, students accused of sexual assault may be expelled if only a simple majority of fact-finders determine that the accused is more likely than not guilty. This is a dangerously low bar. Requiring that all three members of a hearing panel find the accused guilty is a commendable step in ensuring that a student’s educational career does not hinge on one person’s tentative guess at what actually occurred in a given case.
Even more remarkably, the Task Force considers and explicitly rejects the single-investigator model of adjudication, even in the face of other universities adopting that model under pressure from the White House to do so. The report says:
A system where several decision makers evaluate the crucial evidence and come to an informed judgment is one that relies on the benefits of deliberation among several people to reach a wise judgment, and it protects against a single decision maker with idiosyncratic judgments. It thereby protects both fairness as well as the perception of fairness.
FIRE agrees, and according to student newspaper The Stanford Daily, so does Etchemendy:
“There is wisdom in collaborative decision making,” Etchemendy said. “I strongly believe that the panel approach is a better way to go that the single decision-maker approach.”
Other elements of the report are not as unequivocally positive but are nuanced in a way that other colleges would do well to consider. For example, FIRE has written before about how requiring students to give “affirmative consent” to sexual activity has serious implications for due process. Stanford still maintains this standard, but the Task Force distinguishes between sexual misconduct, which involves a lack of affirmative consent, and sexual assault, the definition of which tracks California’s penal code. The Task Force wrote:
[S]exual assault is defined as engaging in certain sexual acts (intercourse, digital penetration, oral copulation, or penetration with a foreign object), without indication of consent, accomplished by means of force, violence, duress, or menace (defined consistently with California rape law) or where a person causes or takes advantage of another in an incapacitated state.
The report argues that the expected sanction for this type of act should be expulsion, but panels reviewing other types of violations may also consider less serious punishments. In emphasizing the state’s standard for sexual assault, the Task Force provides students with important clarity.
Here’s what will happen now that the report has been released, according to the Task Force:
If the president and provost decide to permanently adopt the program proposed by the task force, they must seek approval from the [Associated Students of Stanford University] and the Faculty Senate before changes are officially made. The pilot program, which will centralize authority in the Title IX office, is expected to be implemented next fall and would run for the next three academic years.
There is plenty to watch for as the Task Force’s recommendations are reviewed and potentially implemented. The rest of Willick’s thoughts on the report are worth checking out in the Stanford Political Journal, and the full report is available on Stanford’s website.