Setting a Realistic Standard of Proof in Sexual-Misconduct Cases

Michael Morgenstern for The Chronicle

October 15, 2012

In April of last year, the U.S. Department of Education's Office for Civil Rights made clear its stance that when colleges assess Title IX-related complaints on their campuses, including those involving sexual violence, they should follow the "preponderance of the evidence" standard. In other words, the accused should be found guilty if it is more than 50 percent likely that they committed the act. Those are welcome instructions.

In a recent commentary in The Chronicle, Joseph Cohn, legislative and policy director at the Foundation for Individual Rights in Education, argued that the low standard was unfair to the accused because the burden of proof should be higher in cases of sexual misconduct. We, however, support the use of the preponderance standard, for two main reasons: First, it protects colleges from being held liable for violating Title IX, the law that bars sexual discrimination at institutions receiving federal money; and second, it is the only standard that is equally fair to men and women.

Hundreds of state and federal cases and Office for Civil Rights decisions have measured college compliance with Title IX by using the preponderance standard. It makes sense, then, that preponderance should be the same standard that colleges use to assess violations of their own rules.

Indeed, a college's practice of applying a higher standard of evidence would potentially result in a finding of "deliberate indifference"—the legal requirement to hold an institution liable for violating Title IX. Here's how this could play out:

Suppose a campus complaint is evaluated under a higher standard, such as clear and convincing evidence. Although there is enough evidence to meet the lower preponderance standard, the campus investigation applies the higher standard and finds no violation of college rules. The college closes the investigation and takes no further action to penalize the alleged offender or remedy the alleged discrimination.

The alleged victim is understandably dissatisfied with that result; the college says it believed her, but not enough. So she files a lawsuit under Title IX in civil court. The court will determine whether sex-based discrimination, in the form of sexual harassment, occurred. On the same evidence and applying the preponderance standard, the court finds that it did.

Were college officials aware of her harassment? Yes. Did they respond with deliberate indifference? Yes, because they failed to remedy what the courts and the Office for Civil Rights have long seen as sexual harassment. Thus, colleges that use standards higher than preponderance expose themselves to liability by failing to remedy gender discrimination in cases where there is good evidence, but not evidence good enough to meet the higher standard employed by the college.

Another reason the preponderance-of-evidence standard should be followed is that it is the only fair one. Title IX requires equitable treatment based on sex, both in substance and in procedure. Procedural equity cannot be satisfied by a standard of evidence that skews in favor of one party over another, as any higher or lower standard would.

Preponderance presumes a level playing field, one that is not advantageous to either party. But a higher standard, such as clear and convincing evidence, would make it less likely that those who commit sexual misconduct would be held accountable. Ponder whether it should be harder for a woman to prove that a man raped her than for a man to prove that he did not. Men commit the vast majority of acts of sexual harassment and violence on campuses, and they should not have a systemic advantage that makes it easier for them to do so and avoid accountability.

We agree that there must be sufficient evidence to find someone in violation of a sexual-harassment or related policy. The question is, what is sufficient? Forty-nine percent is not. If both parties are equally believable, that would be 50 percent, which is not sufficient. Only when it is more likely than not (more than 50 percent), should a violation be found.

Most colleges have now fallen into line with that expectation, although it remains to be seen whether the narrow scope of the instructions—focusing only on student-on-student complaints—will mislead colleges into thinking the preponderance standard doesn't apply to employee-on-employee complaints. It does.

None of the substantive and procedural equity requirements of the directive are student-specific. They apply to all aspects of federally financed education programs. The instructions also explicitly require that athletes should be subject to the same equitable process as every other student.

For the most part, the directive last year did not have much impact on the thousands of colleges that are subject to compliance with Title IX. Surveys by Atixa: Association of Title IX Administrators have identified no more than 30 colleges that used the standard of clear and convincing evidence previously for sexual-misconduct complaints and have since changed it.

Finally, any assertion that the new directive lowers the previous standard of proof lacks legal support, as no law or court has mandated the use of a higher standard for campus sexual-misconduct complaints. Any colleges that were using a higher standard before last year's instructions were choosing to do so, just as they are now choosing to comply with those instructions.

That is a wise choice, and a fair one. It protects the best interests not just of colleges, but of students and employees as well.

Nancy Hogshead-Makar is a professor at Florida Coastal School of Law and senior director of advocacy at the Women's Sports Foundation. Brett A. Sokolow is founder of the National Center for Higher Education Risk Management, a consulting and law firm.