Dear Colleague: Collegiate Compliance with Changing Evidentiary Standards of Sexual Misconduct

John Meyer
Associate Editor
Loyola University Chicago School of Law, J.D. 2019

In a world where sexual assault occurrences on college campuses are becoming more readily recognized and reported, one of the many arising issues is how to appropriately respond to the allegations. Facing college disciplinary boards is one of the principal battlegrounds. With cases of sexual assault often lacking enough evidence for police action, many have demanded that colleges take responsibility for their students’ safety. However, in a situation where it is already “he said, she said,” what is the appropriate evidentiary standard for reprimand?

Recent History of Sexual Violence Obligations for Educational Institutions

In 2011, under the Obama administration, the Office for Civil Rights (OCR) issued a Dear Colleague Letter, which it used to clarify federally funded colleges’ obligations under Title IX, a section of the United States Education Amendments of 1972 dealing with sex discrimination. Some of its most striking requirements include the ability to appeal against not guilty-rulings, accelerated timelines for resolution, and an evidentiary standard for sexual assault which is a preponderance of the evidence. The letter specifies that the preponderance of the evidence standard is what the Supreme Court chose to apply for sex discrimination under Title VII and is therefore appropriate for colleges. Technically speaking, this is a series of recommendations rather than actual law, but OCR has the ability to find colleges not in compliance to be violating Title IX. This caused a significant amount of confusion for schools attempting to revisit their policies after the letter. Three years later, in 2014, OCR released Questions and Answers on Title IX and Sexual Violence to provide clarification, which included the affirmation of preponderance of the evidence as the appropriate standard for all aspects of sexual violence.

Pending Changes for Handling Sexual Misconduct

On September 22, 2017, the Department of Education under Betsy DeVos issued interim guidance on the issue of sexual misconduct. This announcement stated that the department would be making alterations to Title IX regarding sexual misconduct after a public comment period. It also brought a new Dear Colleague Letter and a Q&A About Campus Sexual Misconduct for the time of pending regulatory change. The letter immediately withdraws both the previous letter and Q&A. It also claims that under the previous guidance, “accused students [were] denied fair process and victims [were] denied an adequate resolution of their complaints.” The letter then refers to the new Q&A for further clarification. The new Q&A states that “the findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.” Prior to the 2011 OCR letter, many schools had used the clear and convincing standard. This signals the Department of Education’s intention to reevaluate the evidentiary standard and possibly raise the bar.

Comparison of Evidentiary Standards

So, why is there so much concern regarding the evidentiary standard? Most people have heard the terms beyond a reasonable doubt, probable cause, etc. These terms are evidentiary burdens associated with criminal law, with beyond a reasonable doubt being the highest evidentiary standard and a requirement for conviction in a criminal trial. Many evidentiary standards exist and among them are the civil standards: preponderance of the evidence, clear and convincing evidence, and substantial evidence.

Preponderance of the evidence is the most commonly used evidentiary standard for civil law; hence, the Obama administration’s understanding that it would be a sufficient standard for school disciplinary boards. These boards have no authority to make any criminal accusations and are limited to academic punishments such as probation or expulsion. Preponderance of the evidence is a relatively simple standard requiring an allegation be more likely than not to have occurred or 51% of the evidence is in favor of the allegation.

Clear and convincing evidence falls somewhere between preponderance of the evidence and beyond a reasonable doubt. Preponderance of the evidence is often thought about as being 51% and beyond a reasonable doubt is around 99% but where is clear and convincing? Unfortunately, this standard isn’t as simple as splitting the difference somewhere near 75%. In reality, the standard can be understood as what was alleged is highly probable and there is no reason to doubt it.

Impact on Future of Academic Compliance

As mentioned above in the release, the Department of Education mentioned that they would “solicit comments from stakeholders and the public during the rulemaking process.” So, what are the concerns surrounding not only the evidentiary standard but also Title IX’s guidelines for the future?

Well for the time being, under the temporary regulations, schools are not incentivized to change their policies because both standards of evidence are accepted. The temporary standard is so broad, essentially adding flexibility to the 2011 regulation, that most schools will be in compliance regardless of whether or not they update their policy. This has left some professionals at universities unsure of what needs to change but acknowledging that change will be coming. Sexual misconduct is an incredibly political topic with victim advocates frustrated by the rolling back of hard fought for standards and those claiming the standards compromised the due process of the accused. In the meantime, schools will have to continue to monitor the political climate in order to predict further changes in regulations.