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.