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.)
The “Dear Colleague” Letter suggested a range of strategies to discourage, determine and remedy violations, but left the details up to the educational institutions. Very few had devoted anything close to the levels of attention and resources the OCR seemed to expect, and it soon called out a substantial list of colleges and universities, including many elite ones, that it considered out of compliance. What followed was a national scramble to develop policies and practices consistent with notice and enforcement standards that were in many important respects explicitly and deliberately vague. (More disclosure: While I was on the faculty at the University of North Carolina, I served on University committees charged with Title IX compliance and enforcement issues, and as a Title IX hearing officer in disputes concerning sexual harassment and assault. I have real admiration for UNC’s efforts to meet regulatory standards, and heaven knows we took our duties seriously when we served as hearing officers. But no, I can’t and won’t discuss any of that.)
Stanford has been one of the universities subject to OCR’s Title IX scrutiny, and there are differences of opinion over how effective its efforts to discourage and remedy sexual violence have been. Stanford has chosen to put unresolved disputes over whether a student-on-student violation occurred to a three-person hearing panel, with a finding of a violation requiring the unanimous concurrence of all three panelists. Convening a hearing panel to resolve disputed facts is not unusual, but requiring a unanimous finding of a violation is. To make the process more accessible to the students invoking the hearing process, Stanford also took the unusual step of providing them a choice from a list of knowledgeable local lawyers, apparently at the University’s expense for the first nine hours of service, and at a reduced rate of $200 per hour paid by the student after that. (Students were also free to choose their own counsel at their own expense.)
Crystal Riggins was one of the “Stanford-sponsored Title IX attorneys” on Stanford’s referral list, and represented exclusively students seeking recognition and remedy of sexual wrongs. By all reports, Ms. Riggins is an able and experienced lawyer who served the students who chose her with zeal and fidelity. Stanford nevertheless recently removed her from its referral list because it found her lacking in loyalty—to Stanford.
Those of you steeped in the lawyer’s duty of loyalty to her client should just have snapped to attention. Surely you can’t mean what you just said, Bernie. But at least according to the Times, that seems to be what happened. Ms. Riggins considered some aspects of Stanford’s hearing process unfair to her clients, particularly its unusual requirement of panel unanimity to find a violation. This is hardly a fringe position (not that it should have mattered if it were). She criticized the policy publicly in the New York Times. (See here and here.)
Retribution was swift. Lauren Schoenthaler, Stanford’s Senior Associate Vice Provost for Institutional Equity and Access, promptly wrote Ms. Riggins that her comments were “disappointing” and indicated “a lack of faith in Stanford’s Title IX Process.” “Given your stated lack of confidence,” Ms. Schoenthaler continued, “it does not make sense for the university to continue to refer our students to you.” So much for Institutional Equity and Access, I guess.
Crystal Riggins’ response was precisely the one the Rules of Professional Conduct demanded of her: “As a zealous advocate, my only duty is to the student-parties that I represent.” Damn right. See ABA Model Rule of Professional Conduct 5.4(c) (“A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services”). The ethics rule in California (Cal. R. Prof. Cond. 3-310(F)) is differently worded, but to similar effect.
Let me start by making clear some things that are not wrong with Stanford’s actions. This is not a First Amendment issue: Stanford is a private university. This is not an employment wrong: Ms. Riggins is not Stanford’s employee. This doesn’t really meet the requirements of any of the interference torts. Is it a violation of Title IX? That’s debatable, but given the change in administration it’s a debate that may never occur, at least not in any formally enforceable context. I don’t know, of course, but I find myself forced to wonder whether Ms. Riggins would still be on Stanford’s referral list had the recent election come out the other way, so that no change in Education Department policy might have been expected.
The point here is not whether you agree or disagree with Crystal Riggins’ criticisms of Stanford’s Title IX dispute-resolution system. The point is that Stanford made Ms. Riggins’ services more expensive and less accessible to the students participating in that dispute-resolution system precisely because she criticized the system’s procedural rules, and advocated what she viewed as improvements. She was punished for doing her job. Imagine the outcry if a governor had fired a public defender for publicly advocating what she considered fairer rules of criminal procedure than the ones that state had in effect. Yes, there’s a difference because the defender is a public employee (and required to be part of the criminal justice system by the Sixth Amendment), but don’t dodge the larger point.
The Preamble to the Model Rules of Professional Conduct begins: “A lawyer, as a member of the legal profession, is . . . a public citizen having special responsibility for the quality of justice.” It later elaborates: “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” I learned that at Stanford. Stanford seems to have forgotten it.
Perhaps naively, I have always felt that Stanford distinguished itself as one of the truly great modern universities that, while private, fully embraced its public moral duty to lead by open and fearless inquiry into whether its own governance of its awesome intellectual and financial resources exemplified the Right Way to Do Things. But compare Stanford’s reaction here with the recent report of Yale’s “Committee to Establish Principles on Renaming” University facilities, some of which bear the names of slavery apologists and white supremacists. Yale’s report was unstintingly open-minded in its confrontation of the difficult questions presented, and courageously self-critical on issues that are every bit as fraught, divisive and publicly contested as these. Stanford’s gesture is by contrast censorious, closed-minded, mean-spirited, fearful, and small. Shame.