Application of the Wrong Standard of Proof

Title IX was an amendment initially established in 1972 by the U.S. Department of Education to address sexually-based discrimination in schools. Current guidance regarding compliance and overall enforcement is the responsibility of the Office for Civil Rights (OCR). All U.S. academic institutions are responsible for adhering to the provisions which prohibit acts of discrimination that may occur in institutional admissions, accessing benefits, athletic participation, employment, and more. A failure to comply with these provisions may result in a loss of eligibility for federal educational funding.

Various other acts that may constitute a violation of Title IX. Sexual harassment may involve unwanted appeals for sexual favors or other inappropriate advances. Among the most serious, are acts of sexually-based violence that are physical and committed against victims who have not provided consent to participate, such as rape or coercion.

Gender-related harassment may occur by making slurs or promoting false stereotypes that create a hostile environment, such as against those whose sexual orientation is outside of societal norms. Recent federal guidelines have been expanded to include stalking and behavior such as dating violence or domestic violence that occurs on campus or another site associated with a formally recognized institutional organization.

Understanding Title IX Procedures

Despite the OCR's efforts to provide continual guidance for schools to comply with Title IX, many of the detailed procedural provisions have been somewhat ambiguous. Significant emphasis has always been placed on maintaining fairness and preventing potential conflicts of interest. Each school must designate a Title IX Coordinator, that traditionally has been afforded some latitude in developing processes and procedures regarding reporting options, investigative process, assigning those who will make rulings, and more. Sweeping regulatory changes were recently made that are among the most dramatic so far.

The Burden of Proof in Title IX Actions

The burden of proof describes a legal duty for a trier of fact to reach the truth by using the available facts. In Title IX cases, the school has the burden of production and should obtain evidence and ensure that all parties may review the evidence. The standard of evidence employed in evaluating allegations of misconduct that violate Title IX has traditionally been by a preponderance of the evidence. This is often summarized as “more likely than not” and was affirmed to be the proper standard during the Obama-era.

A preponderance of the evidence is a comparatively low standard that is also applicable to civil matters. This standard is satisfied by assessing whether the evidence suggests that the violation occurred by more than a 50% certainty. Recent federal guidance also allows schools to consider a higher “clear and convincing” standard in Title IX matters. 

Clear and Convincing Standard

In Colorado v. New Mexico, the Supreme Court explained the clear and convincing standard as assessing the evidence according to whether it satisfies a “highly and substantially more likely” threshold. Although this standard is greater than by a preponderance of the evidence, it is still lesser than “beyond a reasonable doubt” that is used in criminal actions.

The Requirement to Adopt a Uniform Standard for all Matters

The newest federal guidelines state that the institution must use the same standard for all such actions, regardless of whether the respondent is a student, faculty member, etc. Further, the guidance encourages schools to apply the chosen standard to all types of disciplinary proceedings. For example, in cases where a student is accused of academic dishonesty for allegedly using unauthorized materials during an exam.

Disclosure of the Standard and Training

Schools should identify the standard chosen in their written provisions, which should be reasonably accessible to all members of the academic community. All parties chosen to serve as a trier of fact, such as a hearing panel, must be properly trained regarding what constitutes satisfying this burden of proof. This training obligation is the responsibility of the Title IX Coordinator.

Assessing the More Appropriate Standard

Whether Title IX matters are most suitable for the preponderance of the evidence or clear and convincing standard has been the subject of debate. Some individuals have argued that the preponderance of the evidence standard is the most equitable for both the complainant and respondent, largely based on idea that the 50% standard is fair.

Another thought is that requiring a higher standard to be satisfied is contrary to federal guidelines that seek to promptly or expeditiously resolve these actions. This could also be considered in light of the new Title IX requirements, such as with the addition of mandatory cross-examination, further training provisions, and others that will likely slow the process.

Advocates for victim or survivor protection may potentially suggest that requiring a higher burden of proof may subject the victim to greater hardship by prolonging their direct testimony to better meet this standard. Others have expressed that a ruling based on having merely 50.1% certainty does not correspond to the potential ramifications to the respondent, such as being suspended or dismissed from the institution.

It is likely, however, that colleges and universities will not raise the standard they use for various reasons despite the allowance by the Department of Education to do so.

Importance of Retaining Seasoned Advisory Counsel

Those who are the subject of allegations for violating Title IX guidelines should confer with a knowledgeable lawyer that is familiar with this area of practice. Speaking with an attorney should be prioritized after being informed of the allegations, as federal guidelines encourage schools to promptly respond to and investigate complaints. This will allow for sufficient time to prepare, such as being ready to deliver concise statements and to confidently respond to questions.

In recent years, the Title IX guidelines have continued to shift rapidly with provisional modifications; therefore, having an attorney that is well-informed of these changes is important based on such volatility. Your attorney may also potentially engage in discussions with the administrators toward negotiating an amicable resolution.

Attorney Represents Respondents in Title IX Matters

If you are found to have committed acts of sexual assault, harassment, or other forms of misconduct that violate Title IX rules, you may be suspended or dismissed from the school. Joseph D. Lento is an experienced attorney that will provide effective advisory representation to protect your rights and best interests. College and university students are should contact the office at (888) 535-3686 for additional information.  

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

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