Title IX Burden of Proof

The U.S. Department of Education implemented the Title IX amendment in 1972 to address concerns regarding sexually-based discrimination in the nation's system of education. All schools must create a process that promptly and equitably manages allegations of possible sexual misconduct that could hinder the learning process, create a hostile environment, or unfairly exclude someone. The provisions apply to students, staff, faculty, and others that are associated with an academic institution.

Acts of discrimination based on sex or gender may occur in various areas of a college or university setting such as institutional admissions, athletic participation, access to scholarships, or other benefits. Title IX prohibits acts of sexual harassment including unwelcome appeals for sexual favors, inappropriate advances, and slurs or false stereotypes about someone's “actual or perceived sex.” Acts of harassment based on gender may be committed verbally or non-verbally and are typically biased or intimidating. Among the most severe violations are those involving sexual violence, including rape or coercion that may have criminal implications.

Each school must designate a Title IX Coordinator that is responsible for creating, maintaining, and disseminating the written guidelines for compliance. Upon receiving a complaint, the administration must promptly investigate. The administration is afforded some flexibility in the specific procedures they establish; however, federal guidance emphasizes the importance of treating all parties equitably and fairly.

If an investigation shows that the evidence supports the allegations, the parties may be summoned to a hearing. If the allegations against the accused (respondent) are proven, the individual may face sanctions that include suspension or expulsion. A party may choose an advisor that will accompany them throughout the proceedings and provide support. Students accused of such violations should retain an experienced student rights attorney to function in this role who can carefully interpret your school's specific procedures, analyze all evidence, and ensure your rights to due process.

Burden of Proof

The Title IX disciplinary proceedings are not intended to mimic the formalities applicable to judicial court actions; however, some basic similarities exist. The burden of proof is a legal duty for reaching the truth based on available facts. To prove allegations in Title IX actions, the accuser (complainant) must satisfy a standard of evidence, which has traditionally been by a preponderance of the evidence.

Understanding the Preponderance of the Evidence Standard

A preponderance of the evidence is a comparatively low standard that applies to civil matters. The standard can be interpreted as proving that a violation “more likely than not” occurred. Further, the preponderance of the evidence is satisfied when it is determined that there is more than a 50% chance that the allegations are true.

Clear and Convincing Standard

Federal guidelines were recently modified to allow schools the option of using a clear and convincing standard when evaluating an allegation.  The Supreme Court in Colorado v. New Mexico (1984) explained that this involves determining whether the allegations were proven by clear and convincing evidence, which means that the evidence suggests that the violation is “highly and substantially more likely” to be true. This is a greater burden of proof than by a preponderance of the evidence; however, it is lesser than beyond a reasonable doubt that applies to criminal matters.

Maintaining a Consistent Standard

Federal provisions explain that the institution must employ the same standard of evidence for all Title IX actions regardless of whether the respondent is a student, faculty member, etc. The chosen standard should also apply to any other type of disciplinary matters handled at that academic institution. For example, an allegation made against a student from cheating on an examination should be assessed using the same burden as a student accused of Title IX sexual misconduct. Schools must declare the standard used in their written provisions for general misconduct and Title IX procedure, as well as in their annual safety report.

Which Standard is Most Appropriate for Title IX Actions?

The Office of Civil Rights (OCR) permits the school's leaders to choose from two options regarding the burden of proof. Thus far, they have placed a higher priority on taking action promptly and conducting the process fairly for all parties. If the act of misconduct is proven, the institution must seek to stop the harassment and “prevent recurrence of sexual misconduct and remedy its discriminatory effects.”

Many individuals who support using a preponderance of the evidence standard believe it to be the most equitable to the complainant and respondent. Some individuals feel that requiring a higher standard may be contrary to the goals expressed in federal guidelines that seek to expedite these proceedings. Does requiring complainants that were victims of a sexual assault to achieve a higher standard potentially cause them to unnecessarily endure prolonged emotional harm as they rehash a very traumatic event?

Many proponents of the higher clear and convincing standard feel that merely proving allegations by 50.1% is unfair to the respondent. These individuals feel that the ramifications of a violation have a tremendously adverse impact on a respondent, therefore, satisfying a standard of higher certainty is warranted.

Benefits of Choosing a Seasoned Title IX Advisory Representation

Students that are accused of sexual assault, harassment, or another form of misconduct at a college or university may face harsh consequences if the allegations are proven. In addition to being suspended or dismissed from the institution, the student's educational records or transcripts will likely contain a notation indicating that disciplinary measures were taken. This may impede the individual from being admitted to another school, accepted into a graduate-level program, and create other future problems.

Based on the severity of the potential consequences, respondents are strongly encouraged to seek assistance from an attorney that is familiar with this area of practice. Some of the benefits include:

  • Your attorney will closely analyze the evidence and may unearth some weaknesses or inconsistencies
  • The specific processes and procedures that apply are accurately interpreted
  • He or she may engage the administration to discuss potentially amicable resolutions
  • You will be better prepared to deliver clear statements and confidently respond to questions

Joseph D. Lento is an attorney-adviser that understands what is at stake and can assist you by developing an effective strategy to pursue a positive outcome. Contact the office today at (888) 535-3686 for more information.

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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 our offices today, and let us help secure your academic career.

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