Wednesday, August 2, 2017
Education Secretary DeVos has requested comments on de-regulation. Much recent controversy concerns which standard is to be used by schools in determining whether a student is responsible for sexual assault and other gender based harassment and discrimination under Title IX.
Many comments submitted to date are anti use of the “preponderance of the evidence” standard even though that standard is the one used in civil rights and other discrimination claims. Proponents of the use of a higher standard claim that when sexual assault is alleged, the risk of expulsion and damage to the accused’s reputation demands the use of “clear and convincing” or “beyond a reasonable doubt.” Survivor advocates defend the use of the “preponderance of the evidence” as necessary not only for consistency in discrimination claims, but because any higher standard makes successful hearings on the part of the survivor nearly impossible.
Over 100 law professors have signed a White Paper drafted by Profs. Kathleen Baker, Deborah Brake and Nancy Cantalupo. The White Paper explains the historic use of the “preponderance of the evidence” standard in discrimination cases.
Comments on whether de-regulation of Title IX is necessary or beneficial may be made here. Comments are due on before mid-night on August 21.
Those law professors posting are welcome to send their comments to the HRAH Blog editors who will organize them for publication on the blog.