Stanford's Program re Title VI/Bias (Updated 12/5/24)

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In late January 2023, a Stanford undergraduate was shown in social media reading Mein Kampf, and shortly thereafter bias complaints were filed at what then was Stanford's Protected Identity Harm Reporting website, many of the complaints apparently filed anonymously. The social media posting was publicly condemned two days later by Stanford administrators without their even yet knowing the facts, resulting in subsequent campus and nationwide media stories asking if these sorts of bias intervention policies and procedures were necessary let alone appropriate for a school like Stanford, or at any college campus for that matter. 

 

That and related events also resulted in several op-eds questioning the appropriateness of these policies and procedures and the chilling effect they could have on First Amendment and other free speech rights of students and others. See for example:

 

• “DEI Meets East Germany - U.S. Universities Urge Students to Report One Another for Bias” by Stanford Prof. Ivan Marinovic at WSJ.

 

• “Stanford Faculty Demand End to Anonymous Student Bias Reports” at National Review.

 

The issues are even more complicated for Stanford since Stanford is prohibited by California's Leonard Law from 

"[making] or [enforcing] a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a [school], is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution."

 

On September 17, 2024, Stanford’s office of the provost issued a letter to all students advising them of new policies regarding free speech, campus protests and related matters. A third part of that letter directly addressed the former bias reporting system including the fact that the process had been merged with Stanford’s policies for complying with Title VI of the Federal Civil Rights Act concerning discrimination on the basis of race, color and national origin.

 

Stanford’s newly revised website focuses on Title VI rather than “bias” and where it further says:

 

“To be considered a violation of Title VI, unwelcome conduct must create a ‘hostile environment,’ meaning it must be based upon an individual’s actual or perceived protected class (e.g., race, color, national origin, shared ancestry or ethnic characteristics) that, considering the totality of the circumstances, is subjectively and objectively offensive, and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from a university education program or activity.”

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These changes are a very welcomed improvement, although much will depend on who administers this revised policy since a wide range of statements and actions could still be covered by the revised policy. In addition, it looks like Stanford is still planning to post reports on a public dashboard. It also looks like Stanford is still using the same module in the computerized case management system that it uses for all aspects of student activities and behavior (see the article "Stanford’s Computerized Case Management System" that appears earlier on this webpage) and that it has been using for these same monitoring and reporting purposes in the past. Stanford had previously renamed this particular module “Protected Identity Harm Reporting” instead of the term “Bias Reporting” that is used by most other schools that are using the same system. But the fact remains, this module remains largely the same as before and remains part of the far more comprehensive system for monitoring and managing all aspects of student life.

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Assuming our discussion above is correct, a report for Title VI purposes about a student saying or doing something, even if not followed up on, will still be permanently stored in that student’s profile in the computerized case management system, will still be cross-referenced with all other students, and can still be pulled up at any time in the future by the student services staff if ever there is a future issue about the student who was the subject of the Title VI report. And in which case, the prior Title VI (discrimination/bias) report, even if the student didn’t know one had been made about her or him, can be used against them in any new matters.

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Which is why, as we have said numerous other times in the past, we again urge that Stanford advise students at least annually of their rights to review their files and be able to correct incorrect and even false information that has been reported about them. See also in paragraphs 2. h, i. and j. at our Back to Basics webpage.

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[NEW] By way of background, these sorts of bias reporting systems have been of concern at schools nationwide, not just at Stanford. Which has led to various lawsuits challenging these programs on First Amendment and related grounds. In that regard, one of the more significant current matters is Speech First v. Whitten. Per a press release by Speech First, "currently, lower courts are divided on whether bias response teams violate the First Amendment, with the Fifth, Sixth, and Eleventh Circuit Courts holding that such teams objectively chill students’ speech and the Seventh Circuit Court holding that they do not. Due to this split in judicial interpretation, the plaintiffs in Speech First v. Whitten have urged the U.S. Supreme Court to take up the case and issue a ruling to establish consistent precedent across the country." Here is a PDF copy of the amicus brief filed by Speech First at the Supreme Court, including a reference to the Mein Kampf indecent at Stanford (page 7):

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[REVISED] A similar case was brought by Speech First a year ago regarding the bias response program at Virginia Tech, but​ on March 4, 2024, the U.S. Supreme Court declined to hear that case, partly on the basis that Virginia Tech had filed a declaration stating that it had ended the bias response system and would not reinitiate it. For one of numerous summaries of the court's action, see SCOTUS Blog. 

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Regarding Stanford more specifically, here's how the Stanford Daily initially covered the Mein Kampf story ("Protected Identity Harm Report Filed as Screenshot of Student Reading 'Mein Kampf' Circulates"). And here's how the Stanford Review subsequently covered the story ("Nazis Banned Books. We Shouldn't"). ​As already noted, commentators nationwide also had become aware of and wrote about the Mein Kampf incident.

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These developments, in our minds at least, raised numerous concerns. Among other things, was it appropriate that Stanford’s administrative staff decided, on their own, what might and might not be appropriate speech? Or worse, what would be appropriate books for students to be seen reading? The issue became especially concerning since Stanford is prohibited from adopting speech codes pursuant to California’s Leonard Law, already mentioned above, and the Corry court decision (see former President Casper’s comments about the Corry case), and in many ways, this was worse with Stanford’s student services staff now imposing their own speech rules instead. Who authorized this?

 

We also were concerned about the pressures that were being placed on students to accept what the website described as restorative justice, indigenous healing circles, mediation, etc. We had asked, shouldn’t matters like this be subject to the standards, procedures and protections that are in place with the student disciplinary process? In many ways, this looked like an end run around those protections by the student services staff, and also done solely on their own.

 

And finally, we believed there were serious concerns that these complaints could be filed anonymously and that, per the complaint form, they are then automatically entered into the automated student case management system and often without even telling the targeted student that this was happening.

 

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Again, the merger of the Protected Identity Harm program into Stanford's Title VI policies and procedures seems to be a very good step forward. The question remains, how will the student services and other staff members actually implement it, including their use of the forms and templates that are embedded in the computerized case management system and their possibly still reverting to restorative justice, indigenous healing circles, mediation, etc. for alleged wrongdoers versus due process procedures that are more protective of student rights.