The Proposed Title IX Regulations on Evidentiary Burdens of Proof (Part 5)

This is the fifth and final article in a series discussing the proposed Title IX regulations published by the U.S. Department of Education on November 16, 2018, and intended to address institutional procedures for investigating and resolving complaints of sexual harassment and sexual assault in educational institutions funded by the federal government. As discussed in the four earlier articles in this series, the proposed rules represent Secretary Betsy DeVos’s attempt to reengineer the approach of the Obama administration, set forth in an April 4, 2011, Department of Education “guidance” (the “Obama Guidance”). This article will focus on the standard of proof to be used in Title IX hearings under her proposed rules.

A. The Competing Standards of Proof for Title IX Hearings

There are two competing standards for the burden of proof in Title IX hearings on campus: “preponderance of evidence” and “clear and convincing evidence.” The predominant standard is currently preponderance of evidence, which means “more likely than not” or anything above a “fifty-fifty” likelihood of guilt. Advocates for the use of this standard emphasize that it is used for deciding most issues in civil litigation in both state and federal court, including civil rights claims. They also emphasize that the preponderance standard ensures an equitable process for both the accused and the accuser in that each has the same opportunity to prove the pertinent facts. Finally, advocates for victims contend that using a more rigorous standard of proof will mean that victims of sexual assault—already reluctant to come forward—will be even less likely to institute complaints.

This view is forcefully summarized in Deborah L. Blake’s article, “Fighting the Rape Culture Wars Through the Preponderance of Evidence Standard,” 78 Montana Law Review 111 (Winter 2017):

In actual cases involving sexual assault allegations, whether in the criminal justice system or in university student conduct proceedings, skepticism of complainants already undermines their credibility. This is especially so when the alleged conduct does not fit preconceptions about “real rape”—that is, where the incident did not involve a weapon or a stranger, and did not result in any verifiable physical injuries. Such skepticism by police and prosecutors is a main reason why rape and sexual assault charges so rarely result in prosecution and even more rarely in conviction. It is also a primary reason why sexual assault is significantly underreported. Only a small percentage, between four and eight percent, of persons who experience sexual assault in college report it to campus authorities, and only about two percent report it to the police. A common reason for not reporting is the fear of not being able to prove what happened and of not being believed. Replacing the … [preponderance of evidence] standard with a clear and convincing evidence standard would add to the mix of reasons that discourage complainants from coming forward. [Citations omitted.]

The Obama Guidance mandated the use of a preponderance of evidence standard, relying on arguments that (1) civil rights claims are litigated under this standard; and (2) the standard is commensurate with the other requirements of the Obama Guidance that both the accuser and the accused must be provided the “equal opportunity to present relevant witnesses and other evidence.”   

In contrast, advocates for the more rigorous “clear and convincing” standard contend that a higher standard of proof is warranted because an adjudication in a Title IX proceeding is quasi-criminal in nature and can result in the loss of a college degree, the end of a professional career and reputational harm lasting a lifetime. See, e.g., B. Baker, “When Campus Sexual Misconduct Policies Violate Due Process Rights,” 26 Cornell Journal of Law and Public Policy 533, 560 (2017).

Moreover, the use of a clear and convincing standard is seen as a necessary bulwark for the accused, given the lack of procedural protections in Title IX proceedings and the noted lack of professionalism in Title IX hearing panels. As stated by a group of Harvard professors concerned about the university’s adoption of the preponderance of evidence standard:

To be sure, our legal system uses the preponderance standard—which means “more likely than not”—in many important fora, such as civil trials. But civil trials have many features that have been developed over centuries to produce an overall system fair to both parties, including an independent and neutral initial decision-maker and appeal body, legal counsel, a hearing with rules of evidence, and a right of appeal that relates to all aspects of the decision. Dropping the preponderance standard into the severely skewed playing field of the new … [Office of Civil Rights] inspired procedures risks holding innocent students responsible.

(E. Bartholet, et al., “Fairness for All Students under Title IX,” dated August 21, 2017.)

B. Little Guidance from the Courts on the Proper Standard

Courts have failed to provide concrete guidance on the standard of proof to be used in Title IX proceedings. In Plummer v. Univ. of Houston, 860 F.3d 767 (5th Cir. 2017), the Fifth Circuit Court of Appeals found that a student had not preserved a challenge to the standard of proof on appeal, but a dissenting judge took the position that hearings on alleged sexual misconduct are quasi-criminal and opined that “[e]levating the standard of proof to clear and convincing, a rung below the criminal burden, would maximize the accuracy of fact-finding.” Id. at 782 & n.11 (Jones, J., dissenting). In Doe v. Univ. of Mississippi, No. 3:16-CV-63-DPJ-FKB, 2018 WL 3570229, at *3–12 (S.D. Miss. July 24, 2018), the federal district court, stating unsettled law on the topic, permitted the preponderance standard of proof to stand as a potential ground, among many others, for attacking a campus finding of guilt on due process grounds.

Finally, in the unreported decision J. Lee v. The University of New Mexico, No. CIV. 17-1230 (D. N.M. Sept. 20, 2018), the federal district court addressed claims by a student filing Title IX due process and contractual challenges to his expulsion by the University of New Mexico (UNM). The court permitted him to move forward with his claims for violation of constitutional due process based in part on the preponderance of evidence standard utilized in his Title IX hearing: “[T]he Court concludes that preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”

In contrast, other courts have held that the preponderance of evidence standard passes constitutional muster. For example, in Doe v. Haas, No. 19CV0014DRHAKT, 2019 WL 6699910, at *9 (E.D.N.Y. Dec. 9, 2019), a federal district court recently held that “[s]uch a standard is the accepted standard in the vast majority of civil litigations and … courts have rejected the notion that the safeguards applicable to criminal proceedings should be applied in the school disciplinary context.”   

In any event, Secretary DeVos’ proposed new rules only serve to complicate matters further, as discussed below.

C. The Proposed Title IX Rules on the Standard of Proof

Perhaps in an attempt to split the baby in light of impassioned arguments on both sides, the Department of Education lets institutions choose their own standard of proof, subject to certain constraints. Thus, Proposed Rule § 106.45(b)(4)(1) states that to find guilt in a Title IX hearing, “the recipient must apply either the preponderance of the evidence standard or the clear and convincing evidence standard, although the recipient may employ the preponderance of the evidence standard only if the recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction.” The Proposed Rule further states that “[t]he recipient must also apply the same standard of evidence for complaints against students as it does for complaints against faculty.”

In comments dated January 30, 2019, the ACLU took issue with the proposal and came down strongly in favor of using a uniform preponderance of evidence standard—despite the organization’s long history of advocacy for the rights of the accused. The ACLU contended that (1) the preponderance of evidence is the burden of proof in most civil trials, including claims under Title IX; (2) this standard treats both the accuser and the accused “equitably” and without favor to one side over the other; and (3) if hearing procedures lack adequate procedural safeguards, they should be addressed directly rather than creating a more burdensome standard for an accuser.

The ACLU also criticized the proposed rules in that they provide that a university may use a clear and convincing standard for sexual harassment claims but an inconsistently lower standard for other types of claims.

Finally, the ACLU condemned the proposal’s prohibition on the use of the preponderance of evidence standard for “peer-on-peer” harassment when another standard is used for employees or faculty matters. The organization noted that standards for the latter type of proceedings might well have been contractually negotiated or collectively bargained, and that there is “no reason that such procedures should govern proceedings for peer-on-peer harassment.” The Association of American Universities, in its comments of January 24, 2019, made the same point from another perspective, stating that the “requirement that universities apply the same rule to all sexual harassment cases will upend existing contractual relationships with student, faculty and staff.”

D. Competing Standards under State Law

As previously reported, following a comment period of more than one year, Secretary DeVos plans to move forward to implement the Title IX regulations imminently, and groups representing survivors of sexual assault intend to challenge the proposals in court.

Whatever rules are finally promulgated, schools that already apply a preponderance of the evidence standard will find it challenging to attempt to move to the more exacting clear and convincing evidentiary standard. Moreover, if the Title IX proposals continue to veer away from a mandate for the preponderance of evidence standard, then states may jump into the breach and themselves mandate the lesser standard—as California nearly did in 2017, before a gubernatorial veto. It is bound to be a bumpy ride ahead.

Other articles in this series:
1. The Controversial Proposed Title IX Regulations Addressing Sexual Assault on Campus (Part 1)
2. Defining Sexual Harassment on Campus in the Proposed Title IX Regulations (Part 2)
3. The Proposed Title IX Regulations on Reporting Sexual Harassment and Assault on Campus (Part 3)
4. The Proposed Title IX Regulations on Hearings and Cross-Examination (Part 4)

Mark Moore

This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. We would be pleased to consider providing additional details or advice about specific situations. For additional information on this topic, please feel free to contact Mark H. Moore, who regularly counsels and litigates for clients in connection with sexual harassment and discrimination claims. As part of RPJ’s robust employment practice, the firm offers both in-person and online sexual harassment prevention training programs for employers and universities. More information can be found on our Training Programs page.