In every Title IX proceeding, parties are required to adhere to evidentiary standards. These guidelines dictate which party is responsible for presenting enough evidence that proves or defeats a particular claim, and the amount of this evidence that is necessary to accomplish either a responsible or irresponsible finding. The appropriate standard of proof in Title IX cases, specifically involving sexual assault and other forms of sexual misconduct, has been hotly debated for years.

Under Obama-era Title IX guidance, a standard known as “the preponderance of evidence” was customary. A finding made based on the preponderance of evidence in the context of Title IX matters signifies that either the complainant or the respondents have proved that their version of facts, causes, or fault is more than likely what actually occurred. Imagine a scale representing the burden of proof, with the entirety of evidence from each party resting on respective trays on each side of the scale. If the scale even slightly tips to one side or the other, the side with the most weight will prevail. Also, if the scale does not tip towards the side of the complainant, they will not prevail.

It was perceived that the preponderance of evidence was the most appropriate for student conduct proceedings because of its seemingly equitable nature. However, with the entire revamping of the Title IX process in the wake of the Trump administration, colleges and universities now have the option of adopting the “clear and convincing” evidence standard.

The clear and convincing standard requires complainants to prove that there is a high probability that a particular fact is true - a higher threshold than the preponderance of evidence standard. (Both of these standards are lower than “beyond a reasonable doubt,” which is used in criminal cases). For due process advocates, the choice to opt for an alternative standard of proof is a victory. They have asserted time and time again that the preponderance time is too low to apply to the intricate and circumstantial nature of sexual misconduct cases. Either way, schools feel an immense amount of pressure whether they keep their policies intact in the midst of new rules, or modify their regulations.

It's important that student respondents understand what standard their school applies in Title IX proceedings. Knowing this information will help you prepare, and ultimately give you leverage in your case. Check your student handbook to understand your school's processes of resolving Title IX matters, and to confirm which evidence standard has been adopted in these processes.

Title IX Advisor Helping Clients Nationwide

Sexual misconduct allegations are a big deal and should be treated as such. If you value the investment you've made into your education, retaining a student defense attorney is a must. National Title IX attorney Joseph D. Lento has dedicated his entire career to helping students in this predicament prevail in hearing and overcome their charges. He can do the same for you. For more information about his representation or for a case evaluation, contact him online or give him a call at 888-535-3686 today.