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Advocates say that DeVos’s proposed Title IX rules will make college hearings resemble the U.S. courts.
On November 16, the Department of Education led by Betsy DeVos proposed a set of amendments to Title IX that target, among other protections for sexual assault survivors, the “preponderance of the evidence” standard commonly used in sexual assault investigations on college campuses.
The move represents an ongoing push, evident in the Kavanaugh hearings and in public statements by President Donald Trump, to treat sexual assault allegations with the highest degree of skepticism.
Title IX, which prohibits federally funded educational institutions from discriminating on the basis of sex, has long been invoked by advocates for women’s athletics to secure coaching, training equipment, and other resources for women’s sports teams.
Following mounting advocacy around sexual assault at universities, the Second Circuit Court of Appeals determined in 1980 that harassment and assault also comprised discriminatory behavior and fell under the purview of Title IX. In response, colleges began to develop policies explicitly prohibiting sexual misconduct and protocols for responding to and investigating rape, harassment, and assault allegations.
To adjudicate sexual misconduct cases, colleges followed the same rules that governed other kinds of disciplinary processes. Per a 1961 appellate court ruling, schools were required provide students accused of misconduct violations with minimal due process, including the right to a hearing. In assault cases, as in all misconduct cases, universities could set the burden of proof at their own discretion.
A Department of Justice (DOJ) report found that by 2002, over 80 percent of higher educational institutions had adopted a “preponderance of the evidence” standard of proof. This standard holds that, weighing the available evidence, a student must be found over 50 percent likely to have violated sexual misconduct policy in order to be disciplined for that violation. Unlike the burden of proof set in criminal courts, the preponderance standard, used primarily in civil proceedings, requires that an individual be found probably guilty, rather than guilty “beyond a reasonable doubt.”
In 2011, a Dear Colleague Letter issued by the Education Department’s Office for Civil Rights formally recommended the standard, prompting even more schools to adopt the policy.
Though the preponderance standard had been widely used for a decade, the 2011 letter brought the issue to the attention of conservative-leaning organizations like the Foundation for Individual Rights in Education, which has repeatedly attacked the standard as unfair. With legal and financial support from it and similar organization, an increasing number of men filed lawsuits against colleges that had expelled them for rape.
Before the 2011 Dear Colleague Letter, less than fifteen students accused of assault had sued their schools. In the years since 2011, over 150 such lawsuits have been filed.
If DeVos’s proposed amendment passes, schools could opt to choose the more stringent “clear and convincing” evidentiary standard to minimize findings of responsibility and avoid lawsuits levied by students accused of assault. Or they may choose the preponderance standard and accept the potential legal costs of litigation.
“Preponderance of the evidence,” a relatively obscure legal designation before the 2011 Dear Colleague Letter, has become a flashpoint for men’s rights activism and conservative backlash to Obama-era Title IX regulations.
The National Coalition for Men, an organization DeVos has consulted as Education Secretary—and that the Southern Poverty Law Center considers a hate group—argues the preponderance standard unfairly “shifts the burden of proof to the defendant” in campus assault cases.
Underlying the case for a higher standard of evidence in Title IX cases is the myth of the “rape hoax.”
In fact, the burden of proving that an assault happened falls on the complainant, who must convince an investigator that they were more likely than not assaulted.
Underlying the case for a higher standard of evidence in Title IX cases is the myth of the “rape hoax,” in which women allege rape for attention or revenge. In an explicit endorsement of the notion that rape allegations are often overblown or falsified, current Education Department Office for Civil Rights deputy assistant secretary Candice Jackson—who was hired by DeVos—proclaimed that “ninety percent” of sexual assault allegations “[fall] into the category of ‘we were both drunk.’ ”
There’s no evidence that sexual assaults are over-reported on college campuses, in fact, studies estimate that more than 90 percent of rapes reported to law enforcement are true.
Jackson later apologized for her statement, but she and others including DeVos have maintained that the preponderance standard fails to properly protect alleged perpetrators against false allegations.
Concern for the so-called “rights of the accused” informs the Trump Administration’s push to amend Title IX. In conjunction with changing the preponderance threshold, the proposed amendments will allow for those responding to allegations of sexual assault to cross-examine the complainant.
But where proponents of the law underscore the serious consequences for students falsely accused of assault, they neglect to consider the impact of investigative error for survivors whose assaulters remain on campus.
Legal scholars argue that an appropriate evidentiary standard minimizes the costs of inaccurate findings across all cases, and that for sexual assault cases on college campuses, the preponderance standard does so more effectively than the “clear and convincing” threshold.
Take, for example, the consequences of an individual being mistakenly held responsible for sexual assault. This person is likely to be expelled by their school, and to consequently experience emotional and social fallout in light of the finding.
If a college fails to sanction someone actually responsible for sexual violence, however, the assault survivor may suffer not only from the attack but also the ongoing psychological and physical threat of encountering their attacker in classes and other shared student spaces. And because rapists are often repeat offenders, failing to find someone responsible for assault may additionally enable a sexual predator to hurt more people.
Daniel Hemel, professor of tort law at the University of Chicago, calls for consideration of the “harm to an 18-year-old sexual assault victim of seeing her or his attacker every day on the way to class or the dining hall,” as well as the “grave” cost of false positives.
Overall though, he argues that the error costs supply an argument for the preponderance-of-the-evidence standard in Title IX cases.
Jennifer Davis, a Massachusetts-based attorney specializing in sexual assault investigations, says it’s difficult to generalize, but “when you change the standard of proof . . . there are cases where you’re not going to find somebody responsible, inevitably.”
Despite the notion that the “he-said-she-said” of assault cases makes them impossible to adjudicate (an argument made frequently by critics of the preponderance standard), Davis argues that it is often possible to accurately analyze word-on-word testimony for credibility.
“You never just say, ‘well, he says this, she says that,’ ” Davis explains. “You figure out if people can corroborate or contradict what each party has said [and] consider the plausibility of each person’s account.”
Because sexual assaults usually generate little physical evidence, word-on-word evidence can be the bedrock of an assault case. But under the “clear and convincing” standard, investigators need more than testimony by the complainant and the respondent. The push for a higher evidentiary standard reflects the historic mistrust of women alleging sexual assault. If the “rights of the accused” measure prevails, survivors of sexual violence will face barriers to justice not seen since the 1980s.
The proposed amendments to Title IX are scheduled to pass after a 60-day public comment period.