The Burden of Proof in Title IX Cases

If your child has been charged with a Title IX violation, you face a steep learning curve. Sexual misconduct cases are never easy to defend simply because of the nature of the accusation. In addition, though, they involve lots of complicated issues. You'll probably need to know about affirmative consent policies and standards of evidence. You'll have to learn what a Title IX Coordinator does and what constitutes grounds for appealing a “responsible” finding.

One of the more important aspects of a Title IX case—of any legal case—is how the “burden of proof” is defined. You might think of the burden of proof as the set of conditions that must be met before someone can be found responsible or “guilty” of sexual misconduct. That means that how broad or narrow the burden of proof is defined can have an enormous impact on how you go about defending your child. Who has that burden is equally important since it determines which sides in a case the law favors.

Below we get into the specifics of Title IX investigations and adjudications, including issues surrounding the burden of proof. After all, it's important you know all you can about what's coming. You should understand right from the beginning, though, that you can't deal with these charges all on your own. Title IX is simply too complex. You're going to need help from a Title IX attorney.

So, read on. But know that attorney Joseph D. Lento and the Lento Law Firm stand ready to help. You can find out more by calling 888-555-3686 or by using our automated online form.

What Is Title IX?

Before we get into specifics about how Title IX works, you might be wondering, just what is Title IX? In simplest terms, Title IX is a federal law that high schools and colleges use to deal with most instances of sexual misconduct that occur on campus. Title IX requires schools to take sexual discrimination, harassment, and violence accusations seriously, and it lays out a clear set of guidelines on how schools should conduct investigations. These guidelines deal with everything from what kinds of questions investigators can ask to how long an investigation is allowed to take. They also define the burden of proof in such cases.

Title IX guidelines aren't set in stone, however. In fact, when the law was originally passed in 1972, it was only intended to limit how schools could treat their students. Only over time did it become a tool for disciplining students themselves, and only in 2020 did the most recent regulations go into effect. Those regulations were enacted by the Trump administration, and the Biden administration has already promised to repeal them.

Thus, dealing with Title IX charges is often less about knowing the law than about understanding the law's history and the contemporary politics that continue to shape how the law is enforced.

What Is the Burden of Proof?

We hear the phrase “burden of proof” thrown around a lot in TV courtroom dramas. What does it actually mean, though?

First, it has to do with who has the responsibility for proving what in judicial matters. How the burden of proof is defined depends on the particular kind of case that's involved.

For example, in criminal cases, the burden of proof lies with the prosecutor. That is, in order to secure a conviction, a prosecutor must prove to a judge or jury's satisfaction that a defendant committed a crime. As a sign of this burden, we say each defendant is “innocent until proven guilty.” Defendants have no responsibility, or burden, to prove they are innocent. They are “presumed” innocent from the start.

In civil cases, in contrast, there is no prosecutor. Instead, a plaintiff seeks a judgment against a defendant. In these cases, then, the burden of proof rests with the plaintiff. Again, the defendant has no responsibility. Rather, if the plaintiff wants to secure a judgment against the defendant, they must prove the defendant is liable.

The burden of proof can also lay specific requirements on a prosecutor or plaintiff to meet the burden. In a drug distribution case, for instance, a prosecutor must prove both that the defendant knowingly possessed an illegal substance (drug) and that they intended to sell, deliver, or distribute that drug.

Three Standards of Evidence

Closely related to the burden of proof is the “standard of evidence” used in a judicial case. The standard of evidence represents the bar that proof must pass in order to satisfy the required burden. There are three standards of proof:

  • Beyond a reasonable doubt: Most of us are familiar with this standard. It means in order to convict a defendant; the judge or jury must be absolutely sure of the evidence. They can have no “doubts.”
  • Clear and convincing: Less strict than “beyond a reasonable doubt,” this standard demands that decision-makers believe a defendant “probably” committed a crime.
  • Preponderance of evidence: Here, decision-makers must only decide that a defendant is “more likely than not” to have committed a crime. This is the least strict of the three standards and is often referred to by defense attorneys as the “50 percent plus a feather” standard.

As long as the evidence meets the given standard, the burden of proof has been met, and the defendant is found guilty or liable for their actions. Of course, decision-makers can render very different decisions based on which standard they apply.

Title IX Investigations

To understand how the burden of proof operates in Title IX cases, it's first important to have a clear sense of how such cases typically proceed.

  • All faculty and staff at a high school have a responsibility to report any knowledge they may have of sexual misconduct. However, only a claimant, a claimant's guardian, or the district's Title IX Coordinator may issue an official complaint.
  • Once the Coordinator has signed a complaint, they must notify the respondent (“defendant”) of the details of the accusation. In addition, this notification must include a statement about the respondent's rights. These rights include the right to be presumed “not responsible” and the right to appoint an advisor who may be an attorney.
  • The Coordinator next appoints an Investigator. This individual, who may not be the Coordinator, visits with both sides in the case, collects physical evidence, and interviews any witnesses. Both sides may bring evidence to the investigator's attention or suggest witnesses. In addition, both sides may submit questions for witnesses and for the other party.
  • The district must have a set time limit for Title IX investigations, though each district may set its own. Often limits are 45 or 60 days, though some schools stretch this as far as 120. At the end of this period, the investigator completes a summary of the facts and evidence. This document does not offer findings, only information.
  • Both the respondent and the complainant have ten days to respond to the investigative document and suggest any changes.
  • The document is then forwarded to the Title IX Coordinator.
  • At this point, the Coordinator makes arrangements for a decision-making process to occur. Some school districts allow respondents to defend themselves at an official, live hearing. However, under Title IX, districts are not required to offer hearings. A Coordinator may simply appoint a Decision-Maker to review the investigative document.
  • In either case, Decision-Maker(s) considers the investigative report and can solicit additional information from both sides.
  • The Decision-Maker(s) deliberates and comes to a decision in the matter, either that the respondent is “responsible” or “not responsible.”
  • Finally, both sides have the right to appeal the Decision-Maker's finding. Normally, there is a deadline for filing appeals, and appeals can only be filed for certain very specific reasons, including the discovery of new evidence or the demonstration of mistakes in the Title IX procedures.


Title IX doesn't dictate how high schools should treat responsible students, and most schools don't assign particular penalties to particular kinds of misconduct. Instead, they keep a list of potential sanctions that might include anything from a verbal warning to detention, loss of privileges to mandated counseling. Sanctions are applied based on the circumstances of an incident.

In our current political climate, however, the minimum penalty schools usually assign in Title IX cases is suspension. More often, schools expel students they find responsible for violations.

While all children are entitled to an education under state and federal laws, a school is not obligated to provide that education to a student it has expelled. Some schools will work with families to provide alternatives, such as online classes. In other cases, families are expected to find other schools or to utilize homeschooling resources.

No matter what the specific sanction may be, a Title IX violation can become a black mark on a student's record, preventing them from being accepted at college, finding financial aid, serving inm the military, even getting a good job. This is one reason why it's important to fight charges rather than simply accept them. Even if your child takes responsibility for an incident, you'll want to negotiate a settlement that will preserve their academic and professional future.

Title IX and the Burden of Proof

How does Title IX define the burden of proof?

First, the law makes clear that respondents are entitled to be treated as “not responsible” until proven responsible. In other words, respondents are under no obligation, or burden, to prove their own innocence.

Likewise, however, claimants have no obligations either. The law requires schools to believe claimants' stories but not at the expense of the respondents' rights to due process. In essence, the school must believe both parties.

The school itself, then, has the burden of proving whether or not a respondent committed an offense. This can create an inherent conflict of interest since the school effectively becomes both the investigator and the judge in the case. Title IX tries to overcome this difficulty by separating the Investigator and Decision Maker roles and assigning them to different individuals.

As for the standard of evidence, Title IX allows high schools to use the “clear and convincing” standard. However, almost all schools use the “preponderance of evidence” standard. This can mean that Decision Makers rely heavily on each side's credibility.

Attorney Joseph D. Lento Can Help With Your Title IX Case

If your child has been accused of sexual misconduct, you're probably feeling pretty anxious right now. Your natural impulse is to want to protect your child. In fact, parents sometimes try extreme tactics in these kinds of situations. You may be tempted to try and meet with the accuser and their family to explain what happened or work out an equitable solution. You may find yourself yelling at school administrators or your own kid. You might even be considering throwing up your hands and leaving the district altogether.

None of these strategies works, and most can create far more problems than they solve.

There are basically two things you can do to help. First, learn all you can about Title IX and Title IX procedures, so you'll be prepared for whatever comes. Second, get your child the very best representation you can find.

Joseph D. Lento is a national defense attorney who specializes in Title IX cases. What does that mean? It means he is comfortable whether he's in a courtroom arguing in front of a judge or a classroom negotiating with a superintendent. Joseph D. Lento knows the law. He knows its history, and he knows the politics that surround it. He knows schools, too, though. He's experienced at dealing with their tactics and knows how to keep them honest.

Whether you're defending your child against false accusations or trying to negotiate a fair settlement that will preserve their reputation and their academic career, attorney Joseph D. Lento can get you the best possible resolution to your case.

If your child has been accused of Title IX sexual misconduct, don't wait. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.

Contact Us Today!

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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