In a recent blog post, we asked whether revised evidentiary standards in Title IX cases would actually do anything. An underlying question is why there are different standards to choose from in college disciplinary cases. Only a brief reflection on that issue reveals why Title IX cases should be using the higher “clear and convincing” standard, rather than one that only requires a “preponderance of the evidence.”

The Two Evidentiary Standards for Title IX Cases

The dilemma revolves around how strongly a sexual misconduct case needs to be proven in order for a college to issue sanctions under Title IX law:

• Preponderance of the evidence means that sanctions can be issued if the panel decided that it was “more likely than not” that the misconduct occurred – they only have to be 51% sure
• Clear and convincing evidence, on the other hand, means that penalties can only be issued if the hearing panel is 70% sure

Old Title IX Law Versus Proposed Revisions of Title IX Law

Under current Title IX law, since Obama's Department of Education released its so-called “Dear Colleague” letter, schools must use the preponderance of the evidence standard for sexual misconduct cases. The proposed revisions to Title IX regulations, on the other hand, give schools a choice. They could either:

• Require clear and convincing evidence in sexual misconduct cases, or
• Use the preponderance of the evidence standard for both sexual misconduct and non-sexual misconduct cases.

Severity of Sanctions Should Drive Evidentiary Standards

In the legal world, the evidentiary standard that is used in a hearing or other legal proceeding largely depends on the severity of the penalties. The harsher the penalty, the higher the evidentiary standard.

This is why we require cases to be proven beyond a reasonable doubt – something that requires 98% certainty of guilt – in criminal cases. Defendants can go to jail and be labeled a criminal, so we want to be sure they were really guilty.

Sexual Misconduct is More Severe Than Non-Sexual Misconduct

The penalties that are on the table for students, faculty, and staff who have been accused of sexual misconduct are significantly more severe than those that are possible in non-sexual cases, like academic misconduct or disciplinary violations. Those accused of sexual misconduct are:

• More likely to be expelled
• Less likely to gain re-admittance in another school
• Going to face severe social stigmatization that is far worse than for non-sexual misconduct
• Probably going to be labeled a “rapist” or other alleged degenerate
• Potentially going to face criminal investigations in the aftermath of a Title IX verdict

The heightened penalties for sexual misconduct should mean that these cases require a stronger case and more certainty of guilt than non-sexual cases.

For the reasons we mentioned in our last blog post, though, we're unlikely to see that happen.

Title IX Defense and National Advisor: Joseph D. Lento

Joseph D. Lento is a Title IX defense lawyer and a national Title IX advisor. Call his law office at (888) 535-3686 or contact him online if you need help fighting an allegation of sexual misconduct.