U.S. Department of Education (DoE) Secretary Betsy DeVos recently held Title IX listening sessions to discuss the impact of the DoE’s sexual assault guidance with stakeholders, including victims’ advocacy groups, organizations concerned with the rights of the accused, and campus representatives. After the meetings, DeVos told reporters that there are substantive legal questions about evidentiary standards, due process, and public notice and comment on administrative policies. These meetings and DeVos’s comments have many survivors and their advocates concerned that the preponderance of the evidence (PoE) standard of proof[i] for determining responsibility for campus sexual assault will be replaced with the higher clear and convincing evidence standard or the criminal standard of beyond a reasonable doubt.
At the center of this debate is the DoE’s Office for Civil Rights’ (OCR’s) significant guidance in its April 4, 2011 Dear Colleague Letter (DCL), which explained that “in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).” Supporting this guidance, the OCR pointed out that both Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 prohibit sex discrimination, and that the U.S. Supreme Court has applied a PoE standard in Title VII civil lawsuits involving sexual harassment.[ii]
Unlike the DCL, amendments to the Clery Act that were enacted as part of the Violence Against Women Reauthorization Act of 2013 (Clery Act Amendments) do not require that a specific standard of proof be used in campus disciplinary proceedings. The Clery Act Amendments[iii] do, however, require schools to provide written information to students reporting sexual or interpersonal violence that describes the standard of proof that school officials will use to decide responsibility for alleged sexual misconduct. When the final regulations implementing the Clery Act Amendments were published, the DoE explained that schools “can comply with both title IX and the Clery Act by using a preponderance of evidence standard in disciplinary proceedings regarding title IX complaints and by disclosing this standard in the annual security report required by the Clery Act.”[iv]
On July 19, 2017, 20 Attorneys General sent a letter to DeVos warning that rolling back Title IX guidance, including the PoE standard for investigating and adjudicating allegations of sexual and interpersonal violence, “sends precisely the wrong message to all students.” As pointed out by the Association for Student Conduct Administration,[v] using a standard other than the PoE “do[es] not contribute to a culture that encourages victims to report sexual assault.”
On July 20, 2017, over 50 civil rights and women’s groups sent a letter to acting Assistant Secretary for the OCR Candice Jackson, expressing grave concerns about comments Jackson made that “promoted a sexist and dangerous rape myth.” Their letter urges Jackson to base her policies “on data and the experiences of all affected students . . . . The data is clear: sexual violence is widespread on college campuses and false reports are rare.”
Speaking to the National Association of College and University Attorneys a month earlier, Jackson expressed her commitment to federal civil rights laws, stating that “We’re charged by Congress with a specific mission: to enforce the civil rights guaranteed to our nation’s students by certain civil rights laws, and we are fulfilling that charge.” Jackson added, “For those in the press and my friends with other political perspectives who have been expressing fear that . . . OCR is scaling back or retreating from civil rights, that’s just not the case.”
Opposition to the DCL
Opposition to the DCL has been focused on the PoE, calling it “wrong” and “deeply flawed.” The Foundation for Individual Rights in Education (FIRE), an advocacy group supporting the due process rights of men accused of sexual misconduct, argues for criminal justice standards in campus disciplinary proceedings, asking “Isn’t it firmly established in this country that people are innocent until proven guilty and that the burden of proof is always on the accuser or the prosecution?”
Other legal experts support the preponderance standard because it places an equal burden of proof on both the complainant and respondent, arguing that a higher standard makes it more likely that perpetrators will not be held accountable. In fact, criminal justice statistics show that the vast majority of perpetrators of sexual violence are not held accountable.
We should also note that surveys of campus administrators conducted prior to issuance of the DCL indicate that between 61 percent and 70 percent of universities and colleges were already using the PoE to decide cases involving sexual misconduct against students. Thus, the DCL confirmed how a substantial majority of colleges and universities were deciding these cases before the DCL was issued.[vi]
Nonetheless, pressure is building to increase the standard of proof. Students found responsible for sexual misconduct are suing institutions of higher education (IHEs) at unprecedented rates, claiming that their disciplinary proceedings were unfair or biased, or both. Last year, FIRE[vii] sponsored a lawsuit against the DoE on behalf of a University of Virginia law student who was found responsible for sexual assault using the POE. A retired judge found the UVA student responsible, explaining that it was a “very difficult” decision, but the OCR’s guidance required “the weakest standard of proof” in campus sexual assault cases.
There is no doubt that these are very difficult cases. In a typical “he-said-she-said” case of sexual assault, he says it was consensual sex and she says it was rape. Decisions are usually decided by weighing the complainant’s and the respondent’s credibility because there is rarely corroborating evidence in sexual assault cases.
That is why it’s so important that persons involved in deciding these cases are trained on how to evaluate evidence and the appropriate standard of proof to assess it. It has been suggested that school officials deciding sexual assault cases may “unwittingly require clear and convincing evidence” regardless of the appropriate standard because of the serious consequences to the accused.[viii] Even when school officials know what standard of proof to apply, they may not understand how to apply it if they do not have a complete understanding of how to assess credibility, victim responses, force, and consent. What we’re left with are two possibilities: two people weighing the same evidence can reach different decisions in a case either by applying different standards of proof, or because one person believed what she said and another person believed what he said.
Increasing the standard of proof won’t make these decisions any easier or solve the problem of campus sexual assault, but it will discourage victims and survivors from reporting and seeking the help they need to recover. Eliminating campus sexual and interpersonal violence requires comprehensive prevention education programs, fair and unbiased disciplinary proceedings, and addressing the cultural and societal conditions that facilitate violence. Moving backwards is not an option, because moving forward is the only way to make progress against an intractable problem.
[i] U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: “First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened … In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.
A second proposition … is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions.” In re Winship, 397 U.S. 358, 370 (1970).
[ii] See cases cited in footnote 26 of the DCL: Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (noting that under the “conventional rule of civil litigation,” the preponderance of the evidence standard generally applies in cases under Title VII); Price Waterhouse v. Hopkins, 490 U.S. 228, 252-55 (1989) (approving preponderance standard in Title VII sex discrimination case) (plurality opinion); id. at 260 (White, J., concurring in the judgment); id. at 261 (O’Connor, J., concurring in the judgment). The 2001 Guidance noted (on page vi) that “[w]hile Gebser and Davis made clear that Title VII agency principles do not apply in determining liability for money damages under Title IX, the Davis Court also indicated, through its specific references to Title VII caselaw, that Title VII remains relevant in determining what constitutes hostile environment sexual harassment under Title IX.” See also, Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (“We look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX.”).
[iii] The Clery Act Amendments codified at 20 U.S.C. § 1092(f)(B)(iv) require written notification to reporting students and employees that describes disciplinary procedures for alleged conduct violations involving domestic violence, dating violence, sexual assault, or stalking. The implementing regulations require the written notice to include a description of “the standard of evidence that will be used during any institutional disciplinary proceeding arising from an allegation of dating violence, domestic violence, sexual assault, or stalking” (34 C.F.R. § 668.46(k)(1)(ii)).
[iv] See page 62772 of the VAWA Final Rule at https://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf.
[v] Loschiavo, Chris and Waller, Jennifer L. Association for Student Conduct Administration. The Preponderance of Evidence Standard: Use In Higher Education Campus Conduct Processes. Retrieved from http://www.theasca.org/files/The%20Preponderance%20of%20Evidence%20Standard.pdf
[vi] The DCL states that: “In order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The ‘clear and convincing’ standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.”
See also, Cantalupo, Nancy Chi, et al. (2016) Title IX & The Preponderance of the Evidence: A White Paper. Retrieved from https://www.feministlawprofessors.com/wp-content/uploads/2016/08/Title-IX-Preponderance-White-Paper-signed-8.7.16.pdf
[vii] PolitiFact, an independent fact-checking website, reported that during DeVos’s confirmation hearing before the Senate Committee on Health, Education, Labor and Pensions, Senator Bob Casey said that FIRE supported legislation that would replace the PoE standard with the criminal beyond a reasonable doubt standard in campus disciplinary proceedings involving sexual misconduct. Casey also stated that “The organization that has that position which is contrary to the law, the current law, and contrary to the spirit of what we’re trying to do in that piece of legislation, is the recipient of donations from you totaling about $25,000 bucks over four years . . ..” PolitiFact found that IRS filings showed that the Dick and Betsy DeVos Family Foundation did donate $25,000 to FIRE between 2010 and 2013, but DeVos and her husband are not the only board members, so Casey’s claim was rated “Mostly True.” Orso, Anna (Jan. 19, 2017) Trump’s education pick donated to Philly group with controversial campus rape stance. Retrieved from http://www.politifact.com/pennsylvania/statements/2017/jan/19/bob-casey/trumps-education-pick-donated-philly-group-controv/
[viii] Note, Preponderance of the Evidence and Student-on-Student Sexual Assault, 53 B.C. L.Rev. 1613, 1649 (2012). Retrieved from http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3259&context=bclr