The controversy of Title IX and its applicability to sexual misconduct proceedings is rooted in institution's ability to protect survivors of assault, but not to the extent where it infringes on the due process rights of respondents. It's a balancing act that many colleges and universities have yet to master. But as previously reported, possible reform from the Department of Education could change what the enforcement of this law looks like.
One of the most contentious aspects of the new proposed guidelines is the option to choose between two standards of evidence for Title IX proceedings: “preponderance of evidence” or “clear and convincing.”
The former option, the preponderance of evidence, was imposed in the era of the Obama administration and is one of the lowest standards on the spectrum. Based on this standard, an accuser must provide evidence that proves that there is a greater than 50% chance that the accused violated school policy. The clear and convincing standard is used in courts to decide if an accusation is highly probable. This standard is more rigorous than the preponderance of evidence, but is less rigorous than “beyond a reasonable doubt” - a standard that is commonly used in criminal trials.
The Obama administration's line of reasoning for mandating the preponderance of evidence is simple. It was the only standard that was consistent with other civil rights proceedings. Colleges and universities essentially handpick the type of students they want to attend their school. Institutions have wide discretion as to how they establish and enforce the rules students must follow when they get there. Because of this fact, disciplinary proceedings result in repercussions that don't at all resemble civil or criminal penalties.
Schools may impose sanctions upon a responsible party that entails having to change their schedule, or be suspended or expelled from campus. Relatively lenient consequences compared to incarceration, probation, and other civil or criminal penalties. Since civil and criminal punishments are severe, it arguably makes sense that they warrant higher standards of evidence.
But not everyone agrees with using the preponderance of evidence in college disciplinary proceedings. One prominent critic being the Secretary of the Department of Education, Betsy DeVos, who believes the low standard undercuts due process and impedes fundamental fairness.
As of now, it's been reported that the Education Department is still deliberating about whether or not to make the change. If it goes through, it will have an overwhelming impact on the many cases that are still open or have yet to be reported.
Nationwide Title IX Advisor
The only way to make sure your voice is heard and your rights are upheld is to retain a student defense attorney. For respondents, especially, the assistance of an attorney advisor is invaluable in the Title IX process. National Title IX attorney Joseph D. Lento has the skill, experience, and expertise to help you preserve your entitled rights under Title IX and your school's policy. For a case evaluation or more information about his representation, contact him online or give him a call at 888-535-3686 today.