Yesterday, the Department of Education released final new Title IX regulations. Our office is addressing the regulations, which mandate significant changes to the way that most colleges and universities have been handling accusations of sexual assault and harassment, in a series of blog posts. This post addresses just one important issue as to which the regulations clarify schools’ options: the standard of proof that they can use to adjudicate complaints falling under Title IX.
While overall the regulations prescribe how allegations must be resolved with a fair amount of specificity, one area in which they have given the schools increased discretion compared to prior guidance is the standard of proof for resolving allegations. In a 2011 “Dear Colleague” letter, issued in a different presidential administration, the Department’s Office for Civil Rights (“OCR”) required schools to use the “preponderance of the evidence” standard to determine whether or not a respondent was responsible for sexual harassment or assault. A preponderance of evidence means, essentially, that the evidence establishes that something is more likely than not to have occurred.
While many schools already used this standard before 2011, others used a “clear and convincing evidence” standard, which requires proof to a higher level of certainty—though it does not require proof beyond a reasonable doubt, as in a criminal case. Although the 2011 “Dear Colleague” letter, unlike the new regulations, did not carry the force of law, it nonetheless had significant force; OCR’s power to cut federal funding to institutions that it found were violating Title IX guaranteed widespread compliance with its mandates. In response to the Dear Colleague Letter, nearly all college and universities altered their policies to provide that a student would be found responsible if a preponderance of evidence demonstrated that they had engaged in sexual harassment.
One consequence of the 2011 Dear Colleague letter and subsequent guidance by OCR was the widespread adoption of systems for adjudicating Title IX complaints that were separate from schools’ existing disciplinary systems. This makes some sense, in that complainants in Title IX matters have rights as a matter of federal guidance and regulation that complainants and witnesses in other types of cases do not have. (The new regulations do not change this). But it created confusion in many cases, as where students faced multiple allegations arising from a single incident, only some of which fell under Title IX. Some schools continued to apply the “clear and convincing evidence” standard for disciplinary matters outside of Title IX, while using a preponderance standard for Title IX matters, others used the preponderance of the evidence standard for all disciplinary matters. In addition to creating confusion in cases alleging violations of multiple disciplinary policies, it also felt arbitrary, given that some very serious conduct resulting in significant harm to others at a college—like physical assault or battery—was reviewed under a “clear and convincing” standard, while relatively mild sexual harassment still resulted in discipline following a determination made on a preponderance standard. The strongest reason for requiring a preponderance standard for Title IX matters, in my view, is that it is just problematic to find that a student “more likely than not” raped another student, and then permit him to remain on campus with his victim. But the same is true of other violent or harassing conduct, including harassment or violence based on other protected categories (like race, religion, or nationality), which are not covered by Title IX and were not addressed in the 2011 Dear Colleague Letter.
The new regulations give schools a choice—they can apply either the preponderance or the clear and convincing evidence standard in Title IX matters. They must use the same standard for complaints against employees, including faculty, as they use for complaints against students—which seems like an appropriate measure to prevent schools from unduly protecting faculty who have engaged in inappropriate behavior. (This may create difficulties for universities where collective bargaining agreements require use of the clear and convincing standard for adjudication of allegations against employees.)
Unlike the draft regulations initially proposed, the final regulations do not require schools to use the same standard in Title IX matters that they use in other disciplinary matters carrying the same penalty.
I would be very surprised if many schools that have adopted a preponderance for Title IX claims standard change it now to a clear and convincing evidence standard—although it is possible that collective bargaining agreements with employees may cause some schools to make that choice, I think most schools have embraced the preponderance standard for student matters wholeheartedly. I also would be surprised if any school were to move to adopt a clear and convincing standard for Title IX matters while using a preponderance standard for other disciplinary matters; I think it would be problematic to put an added burden of proof on complainants in sexual assault cases that isn’t required in other matters. Overall, I suspect that the regulation will have little effect on the standard of evidence that schools use in practice. But as someone who would generally like to see students’ rights enhanced, in all disciplinary matters—not just those falling under Title IX—I am sorry that the final regulations have eliminated the requirement that schools use the same standard of proof for equally serious disciplinary matters.
This post is part of multi-part series by Zalkind Duncan & Bernstein’s Title IX team analyzing the significant revisions to the U.S. Department of Education’s Title IX regulations that were issued in May 2020 and are intended to take effect on August 14, 2020, which can be found here. Links to our other posts in this series can be found here.
If you are involved in a Title IX proceeding at your school, college, or university, and would like to speak to one of our Title IX lawyers about your case, please contact us at (617) 742-6020.