Title IX (of the Education Amendments of 1972) prohibits discrimination based on sex at federally-funded educational institutions in the United States. Historically most known for ensuring equality between male and female athletics programs, in August of 2011 it was invoked to apply a new policy for sexual assault to all federally-funded universities and colleges. The “dear colleague” letter (pdf) from the Office for Civil Rights of the U.S. Department of Education under the Obama administration defines acts of sexual violence (rape, sexual assault, etc.) as “discrimination based on sex”. Among other policies, this letter mandates that universities and colleges (if they want to keep federal funding) investigate claims of sexual assault made by students and apply the “preponderance of evidence” standard when determining guilt.
Under this standard, a student accused of sexual violence is considered guilty in the university’s investigation if the likelihood they committed the act is judged to be at least slightly higher than the likelihood they didn’t. This differs from the more stringent standard of evidence where the accused is only deemed guilty if the evidence is “clear and convincing” (or the even more stringent “beyond a reasonable doubt”). A majority of American top 100 universities had already used this lower standard of evidence, but this new policy forced the lower standard on all of them. 17/100 had previously used a higher standard like “clear and convincing evidence” or “beyond a reasonable doubt”, including: Stanford, Harvard Law, Princeton, Columbia, Yale, UPenn, Duke, and Cornell.
The blog Feminist Law Professors gathered more than 100 signatures from law professors around the United States on a document in support of this application of Title IX, in particular the change to the preponderance of evidence standard, noting that civil rights laws against discrimination “consistently use a preponderance of the evidence standard of proof”. Allowing higher standards of evidence, they argue, would allow treating sexual violence differently from other types of discrimination and make “sexual violence the only civil rights violation not proven by preponderance of the evidence”. (This takes for granted that sexual violence is special compared to physical violence in counting as “discrimination” and a “civil rights violation”.)
On the other side, the Foundation for Individual Rights in Education (FIRE), a non-profit civil liberties group, opposes the preponderance of evidence standard. In a letter to Cornell University, FIRE notes that under this standard “the burden of proof may be satisfied by little more than a hunch”. They argue that this “turns the fundamental tenet of due process on its head, requiring that those accused of society’s vilest crimes be afforded the scant protection of our judiciary’s least certain standard”. See also “Why the Office for Civil Rights’ April ‘Dear Colleague Letter’ Was 2011’s Biggest FIRE Fight”.
One justification for “preponderance of evidence” (in both the “dear colleague” letter and the Feminist Law Professors document) is that it’s used in civil court cases. However, FIRE responds by noting that civil court cases balance this lower standard of evidence out with countless procedural safeguards and protections for defendants not afforded at campus hearings, including: experienced and impartial judges, representation by counsel (i.e. a lawyer), strict rules on hearsay, testimonies given under oath, etc. In addition, they cite the Supreme Court saying that “preponderance of evidence” is used in civil court to a large extent because such cases typically involve a “monetary dispute between private parties”, while higher standards of evidence may be employed “in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant”. FIRE argues that “campus sexual misconduct hearings are more akin to criminal trials than to civil proceedings” and so a higher standard of evidence is needed.
FIRE is not the only group to speak out. The American Association of University Professors (AAUW) released a statement affirming that the “clear and convincing” standard is necessary to protect due process. And an open letter from 16 law professors at the University of Pennsylvania asks why at least the more serious sexual violence cases aren’t handled by professional judges and lawyers, rather than academic tribunals.
Change on the horizon?
The 2016 Republican Party platform (page 35, under the header “Title IX”) explicitly challenges this use of Title IX, including the preponderance of evidence standard and the practice of addressing sexual assault in campus tribunals rather than the legal system.
Whenever reported, [sexual assault] must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge. Questions of guilt or innocence must be decided by a judge and jury, with guilt determined beyond a reasonable doubt. Those convicted of sexual assault should be punished to the full extent of the law.
Some expect the incoming Trump administration to change this Title IX policy. The Obama administration used the “dear colleague” policy letter as an alternative to passing legislation, and so Trump can presumably undo that without legislation. However, note that a majority of institutions had already used “preponderance of evidence”, and the ones that didn’t (and had to switch to it) won’t necessarily switch back. Title IX made that problem worse, but it didn’t create it. See “Trump Administration May Back Away from Title IX, but Campuses Won’t”. The other possibility is that the Trump administration takes the cases out of the hands of universities and puts them into the justice system, although this might be more demanding to implement and less likely to happen (or further away from happening).