If you hear talk of “Title IX” on a college campus, it’s almost certainly a reference to Title IX of the Education Amendments of 1972, the federal law prohibiting sex discrimination in federally funded educational programs. One of our nation’s most famous — and sometimes most controversial — civil rights laws, Title IX was for many years best known for its impact on college women’s athletics. But the law has other important effects on campuses as well. For example, when it was passed, it explicitly banned most forms of sex discrimination in college admissions.
Importantly, Title IX also requires colleges and universities that receive federal funding (which is virtually all of them, since federal funding includes things like Stafford Loans for students) to prohibit sexual harassment on campus. Unfortunately, in recent years, the government’s efforts to fight sexual harassment on campus in the name of Title IX have sometimes overstepped the bounds of the law and the Constitution. Since 2011, FIRE has led the fight against the erosion of free speech and due process rights on campus that resulted from the abuse of Title IX.
In September 2017, FIRE won an important victory when the Department of Education’s Office for Civil Rights rescinded two of its most problematic directives to colleges: its April 4, 2011 “Dear Colleague” letter and an accompanying 2014 guidance document. Both of these documents severely threatened due process for college students accused of sexual misconduct, most notably by requiring the use of the low “preponderance of the evidence” standard to determine guilt or innocence.
What is the “preponderance of the evidence” standard, and why is it important on campus?
The “preponderance of the evidence” is a legal term that essentially means “the bare majority of the evidence,” and it may be best understood by putting oneself in the position of a juror in a courtroom trial. At a trial, a jury is presented with evidence that points toward the guilt or responsibility of the party being accused, as well as evidence that points toward his or her innocence or lack of responsibility. If you, as a juror, believe that the evidence, when taken together, weighs even very slightly in one direction, that means you believe that “the preponderance of the evidence” supports that side’s story. Another way of looking at it is that if, after considering all the evidence, you think it is 50.01% likely that one side is in the right, and 49.99% likely that the other side is, you should find in favor of the 50.01% side.
If you find this confusing at first, you are not alone. The preponderance standard represents a huge decrease in certainty from the far better-known “beyond a reasonable doubt” standard most people are familiar with from criminal trials. While many civil trials (such as those involving lawsuits for money damages) use the preponderance standard, criminal trials in the United States require that guilt be established “beyond a reasonable doubt,” which has no neat numerical formula but which is generally considered to mean a certainty level of 90% or higher that the person accused of the crime actually committed it. Many due process advocates, including FIRE, advocate for a heightened standard of proof called “clear and convincing evidence,” which requires “reasonable certainty” of guilt, thereby decreasing the risk of erroneous guilty findings while not requiring institutional prosecutors to reach the very high standard used in criminal cases. The Supreme Court has green-lighted the “clear and convincing” standard in civil cases involving “quasi-criminal wrongdoing by the defendant,” which mirrors the scenarios taking place in many college Title IX tribunals.
Here’s a quick recap of standards of proof from FIRE’s Guide to Due Process and Campus Justice:
DEFINITIONS: STANDARDS OF PROOF
The following different standards of proof are used by various college and university tribunals. They are defined here in the order of how difficult they are to meet, from the most to the least difficult.
Beyond a reasonable doubt: “fully satisfied, entirely convinced, satisfied to a moral certainty”
Clear and convincing evidence: “reasonable certainty of the truth … the truth of the facts asserted is highly probable”
Preponderance of evidence: “more probable than not”
Substantial evidence: “such evidence that a reasonable mind might accept as adequate to support a conclusion”
Some evidence: any evidence at all supporting the charge
(Direct quotations are from Black’s Law Dictionary.)
The reason students should care about this issue is that even though the federal mandate that schools use the lower “preponderance of the evidence” standard in campus sexual misconduct hearings has been withdrawn, virtually every school has kept the standard at that low level — even those that required more certainty before the governmental mandate. So while a student accused of rape might be acquitted in a criminal trial before a court of law, he or she may still be found guilty or responsible by a campus court, where the panel members are not required to be very certain before finding an accused student guilty of sexual assault.
The Department of Education has said it will develop a new approach to addressing sexual misconduct on campus that takes seriously the rights of both victims and the accused. According to the department, new policy will be implemented through a “notice and comment” process that solicits input from all stakeholders. This is important because the department did not solicit feedback for its 2011 letter, which prompted a FIRE-sponsored lawsuit that helped reverse the mandate in 2017.
Since the 2011 “Dear Colleague” letter was issued, students have filed more than 230 lawsuits against colleges for allegedly conducting unfair disciplinary procedures. FIRE has also sent letters to the government and to universities, written countless articles explaining the risk of erroneous guilty findings, and even provided congressional testimony about the problems with current enforcement of Title IX on campuses. And it’s not just — or even mostly! — about the standard of evidence. A study released by FIRE in 2017 found that college students are routinely denied even the most basic elements of a fair hearing, such as notice of what exactly they are supposed to have done, or an explicit presumption of innocence.