As colleges nationwide grapple with the newly-issued Title IX guidance procedures by the Trump administration, many questions remain as to which standard of proof to choose and who gets to make the choice. “Betsy DeVos announced the policy change in a press conference Friday afternoon, saying universities are now free to abandon that standard—known as “preponderance of the evidence”—and instead adopt a higher standard, “clear and convincing evidence.” In a statement Sunday, Harvard University Title IX Officer Nicole M. Merhill wrote that “the Title IX Office and Office for Dispute Resolution know of no current plan to change the standard of evidence” after DeVos’s statement.”
Arguably, the choice as to the standard of proof could be a mandatory subject of bargaining with a campus labor union (terms and conditions of employment) or a matter of management rights depending upon which state the college is in. Alternatively, the voice of the academic community and students, in particular, may also be a deciding factor for many colleges. In other states, there may be statutes that directly address these concerns as to which evidentiary standard of proof is most appropriate as well as the definition of consent. Division I colleges with major athletic programs, small liberal arts colleges, religious-affiliated schools and colleges with major corporate funding may all view this choice very differently. Insurance premiums that colleges pay to various insurers in order to defend Title IX claims may also be impacted depending upon which standard of proof a college chooses.
The choice is not an easy one. The University of Colorado—Boulder, for example, will continue using the preponderance of the evidence standard in sexual misconduct cases in the immediate future, as reported by the Daily Camera. The California State University system will also keep its policies, including the use of the preponderance of the evidence standard and its policy allowing all parties to appeal, according to a statement from Chancellor Timothy White. Yale University does not plan to change its standard of proof.
In a press release issued on Friday, the Clery Center provided the following takeaways from the Department’s new guidance (key aspects of the document are in bold; non-bolded is Clery Center context or comments.):
- The Department will still rely on its 2001 Revised Sexual Harassment Guidance which went through a notice-and-comment process. This includes the current definition of responsible employees, who are still required to report and institutions must still respond if the institution knows or reasonably should know of an incident of sexual misconduct.
- The Q&A reinforces the function of interim measures. Also referenced as accommodations under the Clery Act, these services make sure the parties have necessary support prior to or during an investigation. As a reminder, under the Clery Act, it is not necessary for an individual to file a formal complaint in order to access these accommodations (such as living, academic, transportation, or working accommodations).
- The institution’s process must be prompt and equitable and conducted by trained individuals; however, the letter notes that there is no fixed time frame under which a school must complete a Title IX investigation. Clery also requires a prompt, fair, and impartial disciplinary process. Although Clery does not establish timeframes either, a prompt proceeding per Clery is one that is “completed within reasonably prompt timeframes designated by the institution’s policy, including a process that allows for extension of timeframes for good cause, with written notice to the accuser and the accused of the delay and the reason for the delay” with “timely and equal” notice of meetings and access to any information that will be used during informal and formal disciplinary meetings and hearings. Your policies should specify this timeframe, as should your institution’s annual security report.
- The Q&A allows for informal resolution of complaints. Mediation was not permitted in previous guidance, and despite the withdrawal of previous guidance, it’s extremely important to note that, even in the updated Q&A, all parties must voluntarily agree to participate in an informal resolution in order to implement such a process.
- The document specifies that the findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing standard. The standard used in such cases must be the same as the standard used for all other student conduct cases. We’d encourage institutions to remember that about 70% of institutions were using the preponderance standard prior to the 2011 letter. The White Paper “Title IX and the Preponderance of the Evidence Standard” provides the history of this standard in civil rights law and past enforcement of Title IX.
- The document notes that if a school chooses to allow appeals from its decisions regarding responsibility and/or any disciplinary sanctions, the school may choose to allow appeal (i) solely by the responding party or (ii) by both parties, in which case any appeal procedures must be equally available to both parties. Although neither Clery nor Title IX require an appeal process, Clery does require a prompt, fair, and impartial process “from the initial investigation to the final result”, which includes any appeal processes, if they exist.
The Clery Center also stated that it looks forward to “providing our feedback to the Department on where the previous Title IX guidance (2011 and 2014) provided important information to colleges and universities that ensured the prompt, fair, and impartial process required by both Title IX and the Clery Act. Guidance is important, but it’s also important that such guidance does not leave room for campus processes to be manipulated or abused to only benefit one party. As a result, the public comment process will play an important role in giving voice to all individuals impacted by sexual violence.”