“SAE loses housing indefinitely after second investigation.” “SAE loses housing suspension appeal, will remain on campus through spring.” “SAE housing suspended for two years due to sexual harassment concerns.”

Articles about Sigma Alpha Epsilon (SAE) were some of The Daily’s most read stories over the last two years, but an extensive account about what happened was never published.

During July 2014, a Title IX investigation of SAE was initiated due to concerns that SAE “caused, condoned and tolerated” a “sexually hostile environment” at its 2014 Roman Bath party in May. The Roman Bath was SAE’s annual toga party, with a pre-party tradition during which pledges tell jokes to the audience. After that party, concerns were raised about sexist jokes told by some of the members, and the Title IX investigation results that came out in December placed the fraternity on alcohol suspension, social probation and a two-year housing suspension to start in spring 2015.

In March 2015, the University opened a second Title IX investigation as a result of concerns that SAE had violated their probation and participated in acts of retaliation or harassment that month. In April, the investigation expanded to look into additional potential retaliatory behavior, including posts on Whatsgoodly, against a Title IX witness in Cabo San Lucas over the 2015 spring break. In May 2015, as a result of the investigation, the fraternity lost its housing indefinitely, and the University placed SAE on probationary status for three years.

SAE declined to comment publicly for every past article regarding the situation. Then their alumni advisor reached out to us in June 2015.

A new investigation

I had been working on the story for nearly three months when SAE members said they had a new source for me.

After almost two dozen emails and a month of radio silence, I finally scheduled a meeting with her: 9:15 p.m. outside the Gates Computer Science building.

The entire correspondence felt like something from a spy movie. I didn’t know her name and had never actually communicated with her directly. My email exchange had been with her acquaintance in SAE: one of the only people — or maybe the only person — who knew her identity.

During the 2015 spring break, this female student had allegedly posted a question on Whatsgoodly, an anonymous polling app. The poll was referenced in the Title IX decision letter that took away SAE’s housing on campus indefinitely, and the University considered the poll one of several “retaliation concerns” by the fraternity against a Title IX witness.

During the second Title IX investigation, the female student with whom I would be meeting decided against taking responsibility for the anonymous Whatsgoodly poll. She was worried about potential repercussions from the University. Over emails with her SAE liaison, we considered several different options to allow her to come forward anonymously. We finally decided on a private meeting between just the two of us.

But a few hours before our scheduled interview, she changed her mind — the risk of the University discovering her identity and opening up an investigation was still too great.

In the larger scheme of the case, proving that one Whatsgoodly poll was not authored by SAE would have had little to no effect on the University’s Title IX decision, and for all I knew, SAE could have made this student up. But I found it difficult to believe that they would go to such lengths to challenge a minor point in the investigation.

My experience with this source exemplified many of the problems The Daily faced when investigating SAE’s story. People on all sides were not willing to talk, and when they were, University accounts differed from source accounts, and source accounts could not be 100 percent confirmed.

Furthermore, the more I learned about the case, the more questions I had about the Title IX investigation process. SAE members and lawyers argued that they had not been provided with due process.

“I just do not think that the punishment fits the crime,” said one current SAE member who had gone through the investigations.

But first I needed to find out: What exactly was the crime?

The Roman Bath party

Every year, as part of its annual Roman Bath party, SAE hosts a pre-party event and invites the members of Stanford’s Pi Beta Phi (Pi Phi) to attend. As part of the 20-year-old tradition, each new pledge must stand in front of the crowd, say his name and tell one joke. If the joke does not receive enough of a response, audience members can throw wine and grapes, and the pledge is asked to sit in the rafters for the remainder of the event.

Sometime before the 2014 event, SAE’s president was contacted by Pi Phi’s president at the time. According to the University’s Dec. 11, 2014 Title IX decision letter, she asked him to “tone down the jokes told at the pre-party” and “to stay away from jokes that were racist or sexist.” However, in a screenshot of their exchange provided by SAE, the Pi Phi president did not explicitly mention racism or sexism.

“I’ve been receiving quite a few concerns/worries about the potential to cross the line with some jokes,” she wrote. “Obviously most jokes are just plain hilarious and great, but last year there were a number of people that were offended even if they were intended to be just a joke.”

Despite differing accounts of exactly what happened in the presidents’ exchange, both the Title IX decision letter and the screenshot agree that the SAE president responded that he could not necessarily control what the pledges would say, since the fraternity does not “censor” the jokes. But he agreed to remind them to “keep [the jokes] under control.”

Whether or not this message reached the new members is unclear. According to the Title IX letter, the president notified both the vice president and SAE’s New Member Educator, and while the latter told new members not to be insensitive, he noted that he may not have stressed the message enough. Pledges interviewed for the investigation did not remember being told to “tone down” their jokes based on prior concerns.

Yet that evening, after one pledge told a sexist joke and received a “big response,” according to the Title IX letter, several others, some of whom were drunk, began to search for jokes about women online. The result was at least six sexist jokes cited by the University, including “Why don’t women ever wear watches? Because there’s a clock on the stove” and “What do you tell a woman with two black eyes? Nothing: You’ve already told her twice.”

Speaking on behalf of the fraternity, Laird Cagan ’80 M.S. ’80, who has acted as SAE’s alumni advisor since 2003, confirmed this sequence of events. While he said that everyone agreed the jokes were offensive, he questioned the University’s categorization of the jokes as “sexual harassment.”

“It is important to appreciate that the University never established facts to bring the Bath Party jokes within its sexual harassment policy,” Cagan said. “That policy, Administrative Guideline 1.7.1, is very specific and requires much more than offensive conduct or even unwanted sexual advances or requests for sexual favors.”

“Does telling jokes at a joke party at a fraternity, where everyone knows the format, create a hostile living environment under Title IX?” he added.

The Title IX letter said witnesses uniformly described the pre-party as a “rowdy affair,” with some witnesses calling the climate “shocking” and “primitive.” It also stated that women were not able to “easily leave or remove themselves from the situation.”

SAE members present commented that although some women did get up to leave or walk around during the event, the environment did not seem unusual for a Roman Bath pre-party.

“Absolutely not out of the ordinary,” said one SAE member when asked about the environment that night. “It was like any fraternity party I have literally ever been to on this campus. It was no different.”

In their appeal, which included letters of support from several Pi Phi members, SAE argued against the claim that a majority of the women present sat in “stunned silence.” Members of Pi Phi declined to comment for this story.

SAE members and witnesses from the Title IX investigation, however, did agree that concerns about the jokes arose quickly after the pre-party. SAE apologized to individuals who brought concerns to them, and the jokes were discussed at a house meeting after an email sent to all fraternities from the Inter-Sorority Council on May 22 referenced the jokes. According to the Title IX letter, a more focused house discussion was not immediately held, and both Pi Phi and Kappa Kappa Gamma sorority (Kappa) canceled their remaining social events with SAE for the quarter.

What further complicated the situation were two transports from SAE that same evening. The first involved a pledge who, according to Cagan, had stumbled while climbing down a ladder from the rafters and had to receive several stitches on his forehead. The second involved a female student transported as a possible result of being roofied.

In the Dec. 11 Title IX decision letter, the University did not list any specific substantiated instances of SAE’s use of drugs or alcohol to incapacitate women. In a section titled “Other Concerns of Possible Drugging Incidents and Unwanted Physical or Sexual Conduct,” the letter stated “several concerns had been raised” regarding “suspected drugging incidents” and “alleged unwanted physical conduct.” However, it said that the “majority of women involved in these incidents were not willing to participate in this [investigation] or any other formal investigation.”

“Based on information available about other incidents, the University by a preponderance of the evidence is not able to substantiate what exactly occurred or whether what occurred could be attributed to SAE,” the letter reads.

“The number and nature of the concerns involving conduct against women at the SAE house, however, is concerning especially in light of the hostile climate at the Roman Bath pre-party in combination with the nature of SAE’s response to concerns raised before and after the pre-party,” it adds.

When students heard about the alleged roofie incident at the Roman Bath party, several blamed SAE. The fraternity claimed that its own concern to clarify that its members were not responsible for the drugging incident eclipsed much of its concern regarding the jokes.

SAE sources emphasized this point in regard to two meetings between their leadership and members of Kappa, the second of which also involved ASSU representatives. SAE members told The Daily that they were upset not at Kappa’s cancellation of their social events, but rather at an email sent by Kappa leadership that attributed the roofie incident to SAE. But based on witness reports, the University cited these meetings as “concerns regarding retaliation and intimidation” by SAE.

“[SAE members] indicated that they regretted the tone of the meetings, but felt it was necessary to defend their organization against the alleged drugging incident being presented publicly as a proven fact when that was not the case,” the Title IX letter reads.

The first Title IX investigation and appeal

The week following the Roman Bath party, Catherine Criswell Spear stepped into her role as Stanford’s first Title IX coordinator. During Spear’s tenure at Stanford, the Title IX office handled several controversial cases, including Brock Turner’s arrest for alleged rape and an investigation of the Leland Stanford Junior University Marching Band that led to its ongoing travel ban. Spear stepped down from her position on Sept. 11, 2015 and declined to comment for this article. The investigation of SAE became one of her first Title IX cases at Stanford and the University’s first organizational Title IX incident on campus.

Initiated on July 7, 2014, the case was based on two primary concerns: that SAE had created a “sexually hostile environment” and that SAE had been involved in the use of “high-grain alcohol and drugs to render female students attending SAE-sponsored events susceptible to unwanted sexual advances and actions,” according to the Title IX letter.

Simultaneously, Stanford’s Organization Conduct Board (OCB) also began an investigation that took place in November and December.

SAE received a Title IX decision letter on Dec. 11 and an OCB decision letter on Dec. 19. It appealed to the University on Jan. 14, 2015.

The results of the OCB investigation released on Dec. 19 found that SAE had violated University alcohol and hazing policies by providing alcohol to members under the age of 21 and by requiring pledges to climb into and sit in the rafters at the Roman Bath party. SAE “accepted culpability for these events” in its appeal.

However, SAE’s appeal also included several concerns about the Title IX process, as well as over 250 pages of support letters from SAE brothers, members of Pi Phi and other sororities, SAE chapter alumni and other interested parties.

Although the Title IX letter stated that unsubstantiated claims played no role in the Title IX decision, SAE members, representatives and lawyers questioned why the unsubstantiated incidents were mentioned at all if they had no effects. In an email to The Daily, University spokeswoman Lisa Lapin expanded upon whether or not substantiated instances of sexual harassment by SAE members had been found.

“It is important to note that this situation involved much more than ‘lighthearted jokes,’” Lapin said. “Many examples actually were found to be substantiated with respect to alleged sexual harassment. It is some of the additional allegations of sexual assault and misconduct that could not be substantiated or corroborated.”

However, Cagan, along with SAE members at the time, reported that the University had not told them about any of these substantiated claims and “refused to share any information regarding any unsubstantiated claims.” Despite Cagan’s research into SAE’s history over the past five years, he could not find significant examples supporting alleged sexual harassment.

According to Cagan, members were also never explicitly told to whom the Title IX office spoke or exactly what the claims against them were, besides the two general concerns — creating a sexually hostile living environment and incapacitating women with drugs or alcohol — mentioned at the start of the investigation. In fact, one of the row staff told SAE that “if it is just a bunch of jokes, you have nothing to worry about,” Cagan said.

Lapin clarified some of the details about the origins of the investigation.

“The transports were not the reason for the initiation of the original Title IX investigation,” she said. “The University has a legal obligation to respond when it knew or should have known about the existence of a sexually hostile environment. There were several reports to University staff at the end of spring 2014 that were forwarded to the Title IX office.”

In addition to breaking down the Title IX letter by sections and subsections and responding to particular claims, the appeal brought up two other primary concerns about the investigation process: “procedural irregularities” and “investigative bias.”

SAE’s primary concerns included a low number of witnesses and the investigation’s lack of timeliness. Only six of the 34 people interviewed by the investigator were Pi Phis, despite the Title IX letter’s claim that “[w]hile not all the Pi Phis who heard jokes found them to be offensive, the majority did.”

The Title IX Administrative Policy and Procedures also states the following with regard to investigation timelines: “A Title IX Investigation should normally be completed within 60 calendar days after the University has notice of an allegation of Prohibited Conduct. The Title IX Coordinator or her designee may extend this time frame for good cause, including University breaks.”

The SAE investigation took a total of 157 days from its initiation to its outcome letter. According to SAE’s appeal, the Title IX office also committed to and rescheduled the outcome delivery meeting with SAE leadership six times between October and December before they met in person at 4 p.m. on Dec. 11, 2014 — in the middle of the autumn final exam period. Given the delayed final meeting, the leadership was told they would be able to see the letter in advance but received only a one-hour period starting at 3 p.m. the same day.

Once they were given the letter, SAE leadership were initially told they had only five business days to complete an appeal. However, the University quickly altered this decision to give SAE more time.

Lapin explained that the delay in the investigation resulted from witnesses’ lack of availability over summer break, since the process was initiated in early July.

“Sixty days is a goal,” Lapin said. “For more complex cases involving multiple allegations and witnesses, it is not uncommon for an investigation to take longer.”

“With respect to the initial investigation, part of the delay was due to initial lack of availability of witnesses, in particular SAE witnesses and leadership,” she added.

But one past SAE member said that he had to take an incomplete on a class that quarter — and almost had to take a second incomplete as well — due to the stress and work that resulted from the investigation process.

SAE also argued that the investigator hired by the Title IX office was “a source of bias and discomfort.” SAE members reported that her questions seemed to assume guilt and that she demonstrated a “hostile” and “intimidating” attitude toward the fraternity members she interviewed.

“I just thought that she didn’t seem neutral,” said one past SAE member who was interviewed for the investigation. “Maybe because we were the accused, you can’t really expect to be treated fairly and neutrally.”

“She treated me like a criminal being charged,” he added.

While it acknowledged that the jokes were wrong, the appeal also questioned whether or not the Roman Bath activities constituted sexual harassment.

“I talked to many lawyers and other people knowledgeable about the law [around Title IX], and they said that there’s absolutely no way a joke-telling party at a fraternity house would constitute a hostile living environment for other students who don’t live there,” Cagan said.

“If any hostile environment has been created, it has been created against the SAEs,” he added.

But on Feb. 12, 2015, Greg Boardman, the vice provost for student affairs, upheld the original Title IX decision and denied SAE’s appeal. He explained that the investigation delays did not have a negative impact on the outcome decision and did not find that the appeal demonstrated bias by the investigator. He also addressed the concerns about the low number of Pi Phi witnesses.

“It is undisputed that some number of attendees, more than one and less than all, were upset and offended by ‘The Forum’ [the pre-party],” Boardman wrote. “It is unnecessary to quantify that number, and trying to do so misses the point.”

“The point is that having been advised by the President of Pi Phi to take care to ensure that there was an appropriate environment at ‘The Forum,’ SAE leadership failed to take the opportunity to guide members in a discussion regarding an appropriate environment by the event,” he added.

Boardman also highlighted the difference between intent and impact and SAE’s failure to recognize the distinction when it came to both sexual harassment through the jokes and also hazing. He explained that while a single crude joke was not sexual harassment, what happened at the Roman Bath pre-party was.

“‘The Forum’ involved an onslaught of jokes that rewarded this behavior by the membership,” he wrote.

Boardman’s response disregarded many of the points in SAE’s appeal due to the Title IX appeal requirement that new evidence be “not available at the time of the initial review.” SAE argued that while information brought up in the appeal had been available at the time of the initial investigation, they had not known exactly what specifics they would need to provide, since they had only received general bullet points about the charges against them and had not been able to view witness statements.

“SAE at all times knew the allegations against them and any and all information they wanted to provide would have been reviewed. They were given notice of the concerns,” Lapin wrote to The Daily in response. “The allegations were very specific.”

However, Boardman did make some changes to the original decision. SAE was allowed to live in its house until the end of the 2014-15 school year while on alcohol suspension and social probation. The fraternity could not hold social events in the house with invited guests, and alcohol was not allowed in common areas. SAE would also be eligible to reoccupy the house in fall 2017 if the chapter developed a plan for house management.

The second Title IX investigation and appeal

But less than a month later on March 11, 2015, the University notified SAE of a second Title IX investigation based on a possible party and concerns of retaliation and harassment against an individual to prevent her from reporting possible unwanted sexual contact on March 7-8.

On April 20, SAE received a second notice stating that the investigation would also look into whether or not members had harassed and intimidated a female Stanford student vacationing in Cabo over spring break because they believed she had been a Title IX complainant in the first investigation.

On May 18, Boardman delivered the results of the investigation, and SAE lost its housing indefinitely. For the remainder of the school year, the fraternity could not have alcohol or outside guests within the residence — with the exception of family members — and all members were immediately placed on probationary status for three academic years. Provost John Etchemendy denied SAE’s second appeal on Aug. 4.

The second Title IX decision letter, written by Boardman, references not only the possibility of alcohol and guests in common spaces on March 7-8, but also several other potential social events or instances of alcohol in common spaces later in the quarter.

“Not all reports to the University were substantiated,” Boardman said. “However, I conclude that the evidence establishes that, on a number of occasions, these restrictions were violated or recklessly ignored.”

In an interview with The Daily, SAE admitted that some members held an unofficial “Probation Party” in April, and a Facebook invitation brought the event to the University’s attention. However, it also argued that, despite the fact that members broke probation, the two primary events on which the second Title IX decision was made — an incident involving alleged intimidation by an SAE staff member and SAE’s alleged retaliatory behavior in Cabo — did not justify the outcome decision.

Witness accounts and University accounts differ with regard to what happened on the night of March 7 or in the early morning hours of March 8. All agreed, however, that an intoxicated female student, Beth Jones*, arrived at SAE on March 7-8 with some friends. While she stayed with her group of friends during much of her time there, she also spent some time alone with an SAE member (SAE A) who had never met her prior to this incident.

After Jones went back to her dorm, she said she may have been subjected to unwanted sexual contact sometime during that night but was not sure when or where it had happened.

According to a former SAE member who had been present, Jones had been at other dorms and houses before arriving in tears at SAE. When SAE A heard about Jones’ concern regarding sexual assault, he became worried, and an SAE staff member (SAE B) decided to go to Jones’ dorm to relay information to her resident fellow about what had happened at the house. Both of the other SAE members, and later Jones, confirmed that SAE A had not been involved with any sexual assault, according to SAE’s second appeal.

SAE B took a fellow SAE member (SAE C) with him — as a second witness to the conversations at the dorm, according to a former SAE member. The University saw this as another instance of intimidation.

“The protocol for urgent situations is to call the on-call residence dean,” Boardman wrote in the second decision letter. “It was not a reasonable or sensible decision for the SAE student staff member to bring a fraternity brother along with him to conduct private and sensitive student affairs work.”

When Jones’ resident fellow could not be reached, SAE B ended up speaking with a resident assistant (RA) at the dorm instead.

While the Title IX letter reports that the RA claims SAE B never inquired about Jones’ well-being, SAE’s second appeal claims that both SAE B and SAE C confirmed that this is false. Despite being listed as a witness to the event by SAE B, SAE C was never interviewed for the Title IX investigation. SAE C did later submit a personal statement confirming that SAE B had asked about Jones’ well-being, but the University chose to use the RA’s account of what had happened.

“In his testimony to Ms. Glaze [the Title IX investigator], the SAE staff member indeed reported that he thought he had asked how [Jones] was,” Etchemendy wrote in his appeal response. “I followed up with Ms. Glaze, who said that the staff member did not volunteer this information on his own, but only said so when she explicitly asked him about it.”

“Since the RA had nothing to gain or lose from this testimony, his testimony trumped the SAE staff member’s, who had a great deal at stake,” he added.

The second incident in question occurred in Cabo, where several SAE members decided to spend their 2015 spring break. Three specific instances of retaliation against Title IX witness Jane Smith* were cited in the University’s May 18 Title IX decision letter. Smith also wrote her own account of what happened in a Daily op-ed.

The first encounter referenced in the decision letter talked about a private room SAE had reserved on March 21 at a bar. Smith approached the room, and one SAE member, Jeff Taylor*, was acting as bouncer. The Title IX letter stated that when Taylor asked whom she knew there, Smith answered “something to the effect that she knew everyone,” and Taylor reportedly had a “rude and childish reaction.”

The letter also details two other interactions between Taylor and Smith and cites them as retaliatory behavior and verbal harassment. SAE’s appeal, however, argues that many of the descriptions referenced in the Title IX letter are unsubstantiated, subjective claims by Smith. It also explained that Taylor’s actions were not driven by the fact that he believed Smith was a Title IX witness.

The University also referenced anonymous polls targeting Smith on Whatsgoodly, but the co-founders of the app, one of whom is an SAE member, would not provide IP addresses or demographics about the posts to either the University or to SAE. Despite SAE’s objections that no evidence could attribute the polls’ authorship to fraternity members, Etchemendy emphasized that both authorship and participation in the polls mattered.

“There would have been a very limited pool of people who both could have participated in these polls (given the geographic range of a Whatsgoodly poll) and who would have been interested in doing so,” Etchemendy wrote.

“It defies belief that these respondents were not primarily members of SAE, though no doubt some friends of SAE, both male and female, also participated,” he added.

Smith, who felt unsafe after her interactions with SAE, ultimately went home early from Cabo. When the events from spring break were brought to the University’s attention, the Title IX office was obligated to investigate, and Stanford also opened an Office of Community Standards (OCS) case against Taylor as an individual.

SAE, however, questioned why Etchemendy did not wait for the OCS panel to come to a decision about Taylor before responding to SAE’s second appeal.

“[I]f the student disciplinary panel were to come to a different conclusion about whether one particular individual engaged in retaliation, that would express the judgment on one issue by a small group of individuals versus the judgment of a larger group of highly experienced advisors to Vice Provost Boardman,” Etchemendy wrote.

“Such an outcome would not in itself invalidate the reasoning that led to Vice Provost Boardman’s decision about retaliation by either this individual or by SAE as a chapter — much less about the broad array of incidents on which his decision was based, most of which are not at issue in the student disciplinary case,” he added.

However, on Aug. 14, 2015, the OCS panel found Taylor “not responsible” for retaliation by a vote of 5-0. Robert Ottilie ’77, a Sigma Chi alumnus and the lawyer who represented Taylor in the OCS case, spoke about how he believes a similar decision would have been made for SAE had the Title IX investigation given the organization due process.

“Having the benefit of a much more thorough investigation that was conducted by the individual student and those assisting him [through the OCS case], and having had the advantage of seeing a substantial amount of evidence, I think there were determinations made by the University — as reflected in that May 18 letter — that were not supported by all of the facts,” Ottilie said. “Those facts weren’t assembled.”

“There were findings made against SAE [in the Title IX investigation letter] that I think — given the benefit of the full record that was established throughout the summer — just aren’t supported by the full record,” he added.

A participant in the OCS investigation, however, explained that the University did not dispute the events that happened in Cabo — the jury only found that there was not enough evidence to determine Taylor’s motivation for his actions.

Cagan emphasized the difference in “due process” between the Title IX investigation and the OCS case, particularly in Taylor’s ability to know all of the claims made against him and to cross-examine witnesses. According to Ottilie, the OCS office allowed Taylor to see everything on file against him, including some of the Title IX witness statements. SAE, however, never had the chance to read the reports from either of the Title IX investigations or from any witnesses.

“I think it would have been helpful had a full and accurate record been developed before the organizational decision was made,” Ottilie said. “And I think that would have been the case had Stanford provided the organization the same hearing process that they provided to the individual. Because then [SAE members] would have had the opportunity to see what was in the file — views that supported their position — go out, and develop their own evidence and help contribute to the development of the evidentiary file.”

“Had they also had that opportunity, I think their result would have been the same as the individual’s result,” he added.

In a conversation with The Daily, Lapin clarified the differences between the Title IX and OCS investigations. SAE had received summaries of the Title IX investigations, but to protect witnesses, exact statements were not shared with the organization. In the OCS case, witness statements are shared with the accused individual but are considered confidential. She emphasized that the reason SAE was not allowed to see exact witness statements from the Title IX report was to protect those involved in the investigation.

“The University’s decision in the Title IX case stands that a student at Stanford was subjected to retaliatory conduct,” Lapin wrote. “That one individual in the OCS process was found not individually responsible for conduct does not overturn the University’s Title IX finding. That individual case does not overturn the University finding that the organization did retaliate through social media and events over spring break.”

According to one past SAE member, the only reason some SAE members had even found out about Smith’s name as a Title IX witness was through a flaw in the first investigation process that allowed all interviewees to see who had agreed to participate, through a shared Google document used for signing up for appointments.

Smith, however, never signed up on the Google document herself and was never informed about how her identity had been revealed, despite the University’s having promised her confidentiality as a witness.

In an email response to questions from The Daily, Smith emphasized that despite her concerns surrounding the process, discussions attempting to “delegitimize” Title IX are hurting victims more than helping.

“The rights of victims and witnesses in Title IX proceedings at Stanford are not respected or protected,” Smith said. “But even though the process is flawed, it’s better than nothing. Unless you’re proposing a solution, all you’re doing by attacking the Title IX office is undermining the limited access to resources and opportunities for justice that a victim has.”

“The conversation about due process should not distract us from seeking to improve procedure while empowering and protecting students who come forward,” she added.

Other concerns with Title IX and University judicial processes

Ottilie, Cagan and several other sources — both SAE and non-SAE — voiced additional concerns about “due process” in Stanford’s Title IX and judicial processes.

According to Ottilie, who said he had confirmed this with the senior University counsel in Stanford’s Office of the General Counsel a couple of years ago, the disciplinary procedures of OCS cases create a contract between Stanford students and the University. He said this would also be true in Title IX cases through the Alternate Review Process and Procedures and explained that although constitutional due process does not apply to Stanford as a private institution, contractual due process would.

“If the University were to violate their own provisions, it would essentially be a breach of contract,” he said.

“I have been alarmed at the conduct of their Title IX office really since its inception, and I think that alarm has been confirmed by two recent outcomes related to the Title IX office,” he added. “The first, of course, was the University imposed a secondary sanction on the SAEs on May 18.”

He emphasized that the May 18 Title IX decision not only did not give SAE a proper hearing but also was made before all evidence had been developed.

“The problem at Stanford, both in their individual cases but more so in their organizational cases, which they seem to treat differently, is they don’t have a hearing,” Ottilie said. “With no hearing, there’s no adversarial process.”

Ottilie spoke about how, as a lawyer who has dealt with several student law cases, he believes that Stanford also often assumes guilt of the accused. He explained that this bias is largely due to a lack of separation of roles in the judicial process.

Ottilie also works with the Student Justice Project, which focuses on student rights issues at Stanford. In 2011, it released a case study that alleged misconduct by officials assigned to Judicial Affairs cases, and in its second report in 2013, the group conducted an internal review of Stanford’s OCS process through testimonials from 24 individuals. Several of these individuals, all of whom had either been not charged after referrals to OCS or who had been charged and acquitted, reported that the system appeared to presume guilt of the accused.

“My experience at Stanford is the people that are going into that system are, in many many cases, not guilty of what they’re charged,” Ottilie said. “[Stanford has] brought bad charges.”

“And yet, the process isn’t set up, in my view, to let [the accused] prove they’re innocent,” he added.

Cagan said that he met with a number of attorneys, all of whom told him that “the facts and circumstances of the SAE case would be very favorable to SAE in a court of law and SAE would most likely prevail,” he said. He pointed to Corry v. Stanford, in which California’s Leonard Law required that private colleges in California uphold free speech under the First Amendment by law, above any institutions’ private guidelines.

“There isn’t one allegation of physical assault since the Roman Bath Party to anything later — it’s all been speech, verbal communication,” Cagan said. “Why was SAE punished with the worst punishment in decades because of seven freshmen telling offensive jokes?”

A lawsuit under the Leonard Law would have required a single fraternity member to bring charges against the University, and none of the SAEs wanted to do so. Instead, they chose to refrain from making the case public.

“They wanted to work within the system,” Cagan said. “But I think the system failed them.”

Lapin explained that the Leonard Law was “inapplicable” in this case.

“The Leonard Law does not protect conduct that rises to the level of sexual harassment,” she wrote.

“SAE had organizational privileges withdrawn based on organizational conduct,” she added. “The Leonard Law prohibits discipline, under certain circumstances, of individuals, and here no individual was disciplined.”

The line between harassment and constitutionally protected speech, on campus and off, is a blurry one, constantly re-negotiated. Title IX defines conduct that creates “hostile environments” as pervasive, outrageous and interfering with educational opportunity, and prohibits such conduct. But who’s to say what counts as “pervasive, outrageous and interfering” in each specific situation?

“It’s an issue that is without an absolute answer,” said Joel Siegal, a San Francisco attorney who has argued Title IX cases in federal court.

On a national level, a Congressional bill was introduced this July that would make it more difficult for colleges to discipline alleged perpetrators of sexual assault. Two major fraternity and sorority organizations lobbied for the bill, while Title IX advocates have rallied against it.

Hannah Farr ’15, a Kappa alumna who frequented the SAE house, recalled her perception of the SAE Title IX investigation as a sorority member observing from the outside. She said that she wished there had been more communication from the University clarifying the accusations against SAE.

“There was a lot of talk among sororities about how we wanted to face this issue as a whole sorority group, but in my opinion, there was not a lot of transparency once again about exactly what was going on and what they were being accused of and what the danger was,” Farr said. “There was a lot of discussion about what we wanted to do but no material fact.”

Farr also spoke about how the fraternity was not given an outlet to voice its side of the story.

“I think that these guys were actually slandered last year on campus, because I didn’t really hear their point of view publicly,” she said. “And that just frustrated me.”

Almost every SAE source, including Ottilie, also said that he had been unaware that multiple University offices had been involved in the Title IX decisions or that it seemed like the Title IX office had had a disproportionate amount of power in determining the fraternity’s fate. Cagan said that he felt that “the actions of the Title IX coordinator were unusually harsh.”

“It seemed like she had an agenda to send a message, using SAE as the very first case without concern to the collateral damage to the SAE members whose reputations were unfairly tarnished,” he said.

However, the University emphasized that the Title IX office was not the only one involved in the decision.

“[I]n response to concerns brought to the University’s attention, Vice Provost Boardman requested that the Organizational Conduct Board, Residential Education and the Title IX office conduct a joint investigation,” Etchemendy wrote.

“It is worth mentioning that the opinion of the Title IX representative was by no means an outlier nor the harshest opinion represented in the discussion,” he added. “Several attendees [in the meeting discussing an outcome] felt that the chapter’s charter should be entirely revoked, but that was not Vice Provost Boardman’s ultimate decision.”

Moving forward

SAE members are working to move on from the situation, but for some, that has been easier said than done.

“That whole [investigation] process and then now not being able to live in the house — it sucks,” said one current SAE member. “I don’t get to go and hang out with all my friends every night, and it’s really causing a rift in a lot of my really close friendships where I wish I could be closer.”

“It’s kind of ruined my Stanford experience to be honest,” he added. “I don’t really love Stanford anymore.”

The second Title IX decision in particular affected the fraternity’s recruitment class last year. Only 12 of 33 pledges decided to remain with SAE after the second Title IX decision was released. Those who did decide to stay with the fraternity, along with the returning members, will still be under the three-year social probation.

“I don’t blame them for dropping out,” Cagan said. “I believe they have been treated unfairly. The way the probation was outlined, they would have to walk on eggshells for their entire Stanford experience.”

When reached out to for a comment in September, Brandon Weghorst, the associate director of communications for the national organization SAE, said that staff members and local alumni would be conducting a membership review of the Stanford chapter members within a few weeks.

“During that review, they will evaluate each brother in the chapter to determine if he is following our policies and membership expectations,” Weghorst wrote in an email to The Daily.

On the University’s end, the Title IX office is searching for someone to fill the position of Title IX coordinator.

Despite conflicting accounts and uncertain facts, the facts of which we’re certain boil down to the following: SAE was put on probation and had their housing removed for two years for telling jokes and creating a “sexually hostile environment” at a pre-party event and for violating University alcohol and hazing policies. The fraternity then lost its housing indefinitely for breaking alcohol and social probation and for “retaliation” on two counts: a staff member who disobeyed University protocol and SAE members who were found to have been rude to a Title IX witness, one of whom was deemed not responsible for retaliation against her.

There may have been other substantiated instances of sexual harassment by SAE members, the details of which the University cannot disclose. The staff member may have been intimidating on March 8, and the anonymous Whatsgoodly polls in Cabo may have had many SAE participants.

After months of talking to sources, reading official documents and exploring Title IX, I leave it up to you: Does the Title IX process provide sufficient due process for the accused or protection for witnesses and victims? Did SAE create a “hostile living environment” and deserve to lose their house indefinitely? Did the punishment fit the crime?

 

*Editor’s note: The Daily has chosen to change the names of students involved in the investigations in order to prevent repercussions against those involved.

Abigail Schott-Rosenfield and Skylar Cohen contributed to this report.

Contact Kylie Jue at kyliej ‘at’ stanford.edu.