February 10, 2017
What Could Stanford Have Been Thinking?
I find myself reluctantly gesturing toward one of the third rails of public discourse—sexual assault. Substantively, of course, there is very little disagreement: No one speaks out in favor of sexual assault. (Jokes about whether the President is an exception can be made in another forum.) But in the lawyer’s wheelhouse of procedure—especially procedure that influences outcome (which, let’s face it, is just a wordier name for procedure)—there are deeply held and pointedly variant views.
One such issue came to a head recently. Stanford University did something that, at least based on what I can glean from the mainstream media, seems incomprehensibly ill-considered. I’m hoping there’s something the New York Times isn’t reporting that explains things more fully. (Full disclosure: I attended Stanford Law School in the early 1980s. I loved my time there, and remain immeasurably grateful for the outstanding education I was privileged to enjoy. So far as I know, the events related here don’t involve the Law School, its faculty, or its administration. The University, however, ought to know better.)
A quick primer: Because the formality and procedural complexity of the criminal justice system in this country is largely fixed, a certain amount of debate in recent years concerning how to address sexual violence has focused on an alternative remedial system in force in places where a substantial amount of sexual violence occurs—Title IX. Title IX is part of the Education Amendments of 1972 to the Civil Rights Act, and prohibits discrimination “on the basis of sex” at any educational institution that receives federal funds. 20 U.S.C. § 1681. Among other things, this means that Title IX applies to any college or university that receives any federal money for any purpose, and that’s most of them. And though administrative enforcement of Title IX was for many years sparse at best, beginning in 2011 with what is widely known because of its charmingly informal salutation as the “Dear Colleague” Letter, the Office of Civil Rights (“OCR”) in the Obama Department of Education took a series of strong positions that sexual harassment or sexual violence that affects a student’s education—including individualized student-on-student conduct—is discrimination on the basis of sex that violates Title IX. The OCR further opined that any federally assisted educational institution has an obligation both to try to prevent such conduct and to remediate it if it happens, on pain of losing the federal funding that has become integral to most of their budgets. (It remains to be seen how this policy will fare under Donald Trump’s and Betsy DeVos’s stewardship.)
http://www.thefacultylounge.org/2017/02/what-could-stanford-have-been-thinking.html
