Sunday, August 14, 2016
90 law professors signed a letter to the Justice Department supporting the use of the “preponderance of the evidence” standard in determining culpability in Title IX investigations.
As reported before, there has been a movement to raise the standard of proof to be used in on-campus sexual assault hearings brought under title IX. There are several lawsuits against the Department of Education, Civil Rights Division, for promoting use of the preponderance standard on campus. Plaintiffs claim that Justice imposed the standard on campus proceedings without going through proper channels, including promulgating the standard without an opportunity for comments.
According to an article in the Atlantic, prior to the 2011 “Dear Colleague” letter, schools set their own standards, some adopting some form of “clear and convincing”. The April 4, 2011 DOE letter clarified that the appropriate standard to be used in campus sexual assault hearings is the preponderance of the evidence. The letter noted that preponderance of the evidence is the standard used in civil rights hearing complaints.
Prof. Nancy Chi Cantalupo of Barry University Law School, organized the effort. She explained that “Many people seem to think of the law as just one kind of law: the criminal law, but there are many other kinds of law, including civil rights law.”
As the white paper points out, there are no complaints about the preponderance standard being used when race discrimination complaints are heard on campus. Only when sexual assault and other sex discrimination complaints are brought by students is the standard challenged. In many ways, women are the last frontier of discrimination. For whatever reason, challenges are still made to women's rights and women's credibility that we left behind, in the strict legal sense, for race matters.
To many schools the outcome of the legal challenges may be inconsequential. Many schools have already eliminated hearings in favor of investigations that result in an administrative determination outside of the hearing model. Whether or not the hearing model will be restored when the standard controversy is resolved remains to be seen. Also, unknown is whether the alternative investigative process itself will be challenged next.