Among the many changes to Title IX law that are expected in the upcoming regulatory amendments is one that would alter the evidentiary standard for sexual misconduct cases. When the new rules were proposed last year, they gave schools the option of using a “preponderance of the evidence” standard or a “clear and convincing” standard.
Those proposals will likely be kept in the final versions of the regulations. However, they are likely to have virtually no impact.
Evidentiary Standards in Title IX Law
Evidentiary standards are how persuasive a plaintiff or victim has to be with their case. For example, in a typical civil lawsuit, plaintiffs only have to show that they are right by a preponderance of the evidence, letting them win their case if they are 51% right. Meanwhile, criminal cases have to be proven beyond a reasonable doubt, which is something closer to 98% certainty.
Back in 2011, then-President Obama issued new Title IX guidance for schools that required them to use the preponderance of the evidence standard for sexual misconduct cases. While some schools already used this standard, many used a “clear and convincing” standard, which requires something like 70% certainty that an alleged victim's claims are right.
Upcoming Title IX Regulations Likely to Alter These Standards
President Trump's Department of Education has singled out these Title IX rules from 2011 for change. When the Department proposed amendments in 2018, one of the proposals was to let schools choose between the evidentiary standards, again.
Under the proposed rules, though, if the school chose to keep the preponderance of the evidence standard from Obama's 2011 guidance, then they also had to use that standard for non-sexual misconduct, as well. On the other hand, schools would be free to use the higher “clear and convincing” standard for sexual misconduct and the lower “preponderance of the evidence” standard for non-sexual cases.
Those proposed rules are expected to become finalized regulations, despite the controversy they inspired during the notice and comment period.
Schools Likely to Keep Status Quo, Anyway
By giving schools the discretion to use different evidentiary standards, though, this particular facet of the new Title IX regulations might end up having no effect on the law.
As Jeannie Suk Gersen said in an article in The New Yorker, a likely outcome of the ability to choose evidentiary standards would be for schools to adopt the preponderance of the evidence standard for both sexual and non-sexual cases – the same outcome that the 2011 guidelines required for sexual misconduct. As Suk Gersen says, this would “avoid the public-relations cost of leveling up or uniquely disfavoring Title IX complainants.”
That act of “leveling up” the evidentiary standard for Title IX allegations, alone, will likely deter schools from adopting the higher standard. With college politics as they are, and with school administrators pandering to victim advocate organizations, it seems incredibly unlikely that schools would voluntarily take on that public relations nightmare.
Title IX Defense Lawyer Joseph D. Lento
Joseph D. Lento defends students, faculty, and staff who have been accused of sexual misconduct on campus. He's also a national Title IX advisor. Call his law office at (888) 535-3686 or contact him online.