The standard of proof that a college or university is required to use under the Title IX Final Rule is either the preponderance of the evidence standard or the clear and convincing standard. The standard must remain the same for all cases involving allegations of sexual harassment. Whether it involves students or employees, it needs to be consistent, it needs to be either preponderance of the evidence standard or the clear and convincing standard. It cannot shift among, say, how cases would be handled at the school regarding allegations of sexual harassment.
The preponderance of the evidence standard is the lowest standard of proof, it's often regarded as 50% and a feather. The clear and convincing standard is a higher standard. The Title IX Final Rule allows a school to choose between either standard, evidentiary considerations, and whether a school has sufficiently met the burden of proof in a case where a respondent to be found responsible. These are critical decisions.
Having an experienced attorney advisor in one's corner from as early as possible in the process can help you best navigate the process and also these considerations and can help you work towards trying to ensure a fair process and a favorable outcome.
