The evidence is clear and convincing: universities’ approaches to Title IX are broken

July 26, 2019

On Jan. 2, 2017, University of Southern California student-athlete Matt Boermeester walked onto the football field to attempt what would ultimately become the game-winning field goal in USC’s 52-49 victory over Penn State in the Rose Bowl. Four months later, he found himself expelled from school following a Title IX investigation into his alleged domestic abuse against his girlfriend, former USC tennis star Zoe Katz. 

But here’s the kicker: Katz denied that the event had ever occurred. The allegation came from a third party who supposedly saw the abuse take place, and after being filtered through a string of other individuals, it made its way to the USC administration. In fact, Katz later released a statement describing the process as “horrible and unjust” for both Boermeester and herself.

Boermeester and Katz remain romantically involved and actively supportive of each other, and Boermeester filed a complaint in federal court this March demanding a reversal of USC’s decision. In a country supposedly committed to procedural fairness and justice, how could such a seemingly obvious injustice occur? The Boermeester case serves as a perfect reminder that the Title IX guidelines for sexual and domestic assault investigations desperately need a makeover.

The first flaw that plagued Boermeester’s case — and many like it — was USC’s use of the “single-investigator” model. In recent years, many universities across the country have adopted various forms of single-investigator models for Title IX investigations, in which a single administrator serves as prosecutor, judge, and jury, with few if any checks on that individual’s cognitive biases or incompetencies. This sorry excuse for procedural fairness has been denounced by the American Bar Association, and Boermeester has cited USC’s use of the single-investigator model as a major reason for his lawsuit against the school. 

In addition to leaving the investigative process susceptible to an individual’s biases, the single-investigator model often “deprives an accused student of a full and meaningful opportunity to be heard as he is denied the opportunity to present his defense before an impartial panel of decision makers,” as Boermeester’s complaint proclaims. FIRE has suggested that the Department of Education remedy the issues with single-investigator models by replacing them with live hearings before fact-finding panels.

The case against Boermeester revealed another flaw in the way universities handle Title IX cases: the “preponderance of the evidence” burden of proof. The standard’s use in Title IX cases, which was mandated by the Department of Education in the recently rescinded April 4, 2011 “Dear Colleague” letter, requires that universities find accused students guilty if they conclude it is more likely than not that the student committed the offense. Although this system technically affords respondents a presumption of innocence, such a low bar for establishing guilt allows even small cognitive biases to skew one’s decision about a case. In situations where the evidence seems right on the edge between guilt and innocence, such a standard opens the door for a single investigator’s preconceptions to tip the scale one way or the other, whereas a hearing in front of a fact-finding panel could avoid biased findings through checks and oversight. 

Moreover, the concept of due process requires burdens of proof proportional to the consequences faced by the accused. That’s why criminal cases threatening incarceration operate under the “beyond a reasonable doubt” standard, while civil cases maintain either the “preponderance” or “clear and convincing” burden of proof. Though Title IX charges carry no threat of incarceration or loss of physical liberty, they carry serious consequences such as expulsion and a permanent record of wrongdoing that significantly threaten one’s reputation and prospects for success.

Even so, the “preponderance” standard might be justified for cases where the severity of potential punishment is low and due process safeguards like the right to cross-examine are afforded. However, many schools deny the accused a right to cross-examine their accuser, even through an attorney. Even more schools refuse accused students a right to counsel at all and fail to provide them adequate notice of charges and time to prepare. This lack of rights for the accused necessitates a higher burden of proof. (FIRE advocates for a “clear and convincing” standard.)

Each of these defects combines to create an unjust procedure for accused students and, in turn, actually harms victims. In an article for National Review, former FIRE President David French explains how due process lends confidence to participants in and observers of judicial proceedings; it allows us to feel satisfied with the results of criminal procedures because we are satisfied with the fairness of the process. When a system lacks procedural fairness, we become skeptical of the results of that system. And in turn, that skepticism can lead to a social stigma in which victims aren’t believed and are thus discouraged from coming forward.

The way institutions have been handling Title IX cases has failed to inspire confidence, and the results are bad for victims. In some cases, findings of responsibility against accused assailants on campus—some of whom may well have been guilty—have been overturned on procedural grounds since 2011.

The U.S. Department of Education’s proposed Title IX regulations offer a promising starting point for retaining procedural fairness for all parties in Title IX investigations, including allowing schools to use a “clear and convincing” standard and eliminating the single-investigator model. I look forward to a time when accused students aren’t kicked out of school at the whim of a single administrator based on scant evidence, as well as a time when victims can come forward confidently with no fear of their rapist returning to campus later because of shortcomings in the school’s disciplinary process. 

Affording rights to the accused doesn’t come at the expense of justice; it helps to reinforce it.

Wes Richardson is a rising senior at the University of Southern California and a FIRE summer intern.

Schools:  University of Southern California