Which Standard of Proof do Schools use in Title IX Sexual Misconduct Proceedings and did DeVos Change That?
To understand which standard of proof your school will use to analyze the competing stories in your response to a sexual misconduct allegation, you must look at the recent history of the laws on these proceedings. You must also understand that the school is going to do what it wants to do, and what it wants to do is not to protect the respondent, or the complainant, but rather to protect its brand. Thus, in the “she said-he said” context, the school will go with the best told story and adjust the standard accordingly, for, theoretically, no man will survive under a probable cause standard, while no woman will succeed under a beyond a reasonable doubt metric. Paradoxically, the school can choose between both standards because the Department of Education’s guidance allows both, the guidance not binding on the school, and the Rules are not yet final.
What is the Current Available Guidance from the Department of Education on how Schools Should Handle Student Sexual Misconduct Proceedings?
The current guidance from the Department of Education is limited only to the 2017 because deVos withdrew the rest, including specifically the Obama-era 2011 and 2014 Guidance (1), and started a lengthy process to put in place final regulations. (2). That guidance establishes that both standards, beyond a reasonable doubt, or preponderance, are allowed:
Question 8: What procedures should a school follow to adjudicate a finding of responsibility for sexual misconduct?
Answer: The investigator(s), or separate decision-maker(s), with or without a hearing, must make findings of fact and conclusions as to whether the facts support a finding of responsibility for violation of the school’s sexual misconduct policy. If the complaint presented more than a single allegation of misconduct, a decision should be reached separately as to each allegation of misconduct. The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard. (3).
Have the New Regulations that Should Become Law Come Into Effect Yet?
Not yet, but any day now. The guidance for which the very unfortunately named “#f…youbetsy” campaign started has not gone into effect because of the overwhelming number of comments from the public. (3) It should come out very soon according to the Office of Management and Budget. (4). Once those regulations come into effect, there will be a whole new playing field. These regulations, more likely than not, will require no reasonable doubt that there was sexual assault to prove a sexual misconduct allegation—not to mention the regulations, more likely than not, will force the complainant to face her respondent, something that Title IX activists have bemoaned as re-traumatizing to the victim and thus unfair. (5).
So, if I am a Respondent to Sexual Misconduct, Which Guidance Will my School Use?
A school, and particularly so a private one, can do as it pleases and either apply something more like the Obama guidance that started the wave of male respondents suing for Title IX violations under a reverse discrimination theory (6), or follow the 2017 deVos guidance, or maybe go libertarian and simply not prosecute reports of sexual assault on campus. Realize that student misconduct in terms of sexual assault happens along a spectrum of events, but in practice the school will deal with events along this spectrum, under the same rules and with the same staff. This means that whether the events seem falsely stated, gray rape, both were drunk, or the guy is a total serial rapist type, the same overwhelmingly female Title IX staff (7), will investigate, and chose to prosecute.
To be Safe, then, Assume the Worst Case Scenario for a Respondent: The School Behaves Under the Obama Rules.
In effect, the school’s Title IX staff can, and probably should, comply with and behave as if the Obama guidance had become law. That is, seen from the perspective of school employees who want to minimize risk of lawsuits and brand damage, at a time of complete uncertainty both in terms of which law applies and which party will take the White House in the next election, the Obama era guidance covers their bases best—except for the fact that it screws over the respondent.
The Obama era guidance, then, is the worst possible scenario for a respondent to student sexual misconduct. (8). When combined and applied, this guidance focuses on:
(1) requiring schools to “use a preponderance of the evidence standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred)”;
(2) requiring schools to provide an appeals process for both parties;
(3) noting that voluntary mediation is not appropriate “[i]n cases involving allegations of sexual assault”;
(4) requiring schools “to take steps to protect the complainant as necessary, including taking interim steps before the final outcome of the investigation”;
(5) recognizing that “a typical [sexual misconduct] investigation takes approximately 60 calendar days following receipt of the complaint,” but specifying that “[w]hether OCR considers an investigation to be prompt as required by Title IX will vary depending on the complexity of the investigation and the severity and extent of the alleged conduct”;
(6) requiring schools to “process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity”;
(7) requiring that “[i]f a school determines that it can respect [a] student’s request not to disclose his or her identity to the alleged perpetrator, it should take all reasonable steps to respond to the complaint consistent with the request”; and
(8) noting that “[q]uestioning about the complainant’s sexual history with anyone other than the alleged perpetrator should not be permitted.”
If the School Applies this Obama-era Guidance, What will Happen?
The school will have a preponderance of the little evidence it needs—specifically just the version of the facts it learns from the complainant at the unverified stage—to take the interim step of suspending you. The school will do this even if the “he said-she said” events took place in Europe during a school conference, in a private apartment off campus, or in the school library. And if the complainant has a compelling case she will be granted all anonymity while the school may well plaster its campus with your face on a “banned from campus” poster lumping you with the worst criminals in the US.
Because sexual misconduct happens along a spectrum of events and conduct, the risks are enormous. This is why the new and likely final regulations from the Department of Education will likely guarantee that respondents can use lawyers to defend themselves.
Wonkish Point: The School Can Apply the Guidance it Pleases Because there is no Consequence for Doing so Which Means any Guidance is not a Final Regulation:
One of the leading groups advocating for victims of sexual assault on campus, Survive Justice, Inc., sued Secretary deVos and the Department of Education, arguing two points against the currently applicable 2017-guidance, namely that it was a final regulation from DOE, and that even if it was not final it was “arbitrary and capricious”. So the first point is procedural or technical in nature, while the second relies on policy-based considerations. They lost in a fascinating and learned opinion that elided the policy argument in favor of the procedural aspect. (9)
The judge in that case, a white female from the supposedly super-liberal 9th Circuit, held that because schools pledge to comply with Title IX, but not with its guidance, the 2017 guidance itself is not a rule, but a suggestion that carries no punishment for the school:
“The Court concluded that the 2017 Guidance is not binding on schools and does not otherwise produce legal consequences, but instead provides only “information” for schools regarding how OCR will assess a school’s compliance with Title IX and its implementing regulations.” (id 9-11) … “And the record demonstrates that the 2017 Guidance does not produce legal consequences because as a matter of undisputed fact neither the OCR nor OMB Assurance requires compliance with the 2017 Guidance.” (id. 12).
Thus, the school can do as it pleases. It can follow the little guidance in place now. It can follow the old guidance if it matches with its internal brand strategy and its culture. Or it can do something else all together. This is why you prepare for the worst. And this is why you need lawyers.
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather a survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
FOOTNOTES:
(1) The Department of Education’s 2017 Guidance is available here:
(2) The enormous amount of comments responded to these draft regulations: Proposed Title IX Rulemaking, Docket No. ED-2018-OCR-0064, RIN 1870-AA14, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, Federal Register Vol. 83, No. 230 p. 61462, November 29, 2018 available at:
https://www.govinfo.gov/content/pkg/FR-2018-11-29/pdf/2018-25314.pdf
(3) https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
(4) See, e.g, https://www.npr.org/2019/01/30/689879689/education-department-gathers-feedback-on-new-campus-sexual-assault-rules
(5) They are at “final rule” stage: https://www.reginfo.gov/public/do/eoDetails?rrid=129772
(6) See, e.g., https://psmag.com/education/betsy-devos-wants-to-overhaul-title-ix-procedures-what-will-that-mean-for-campus-assault-survivors
(7) See, e.g., https://www.studentmisconduct.com/clients
(9) The Obama-era Title IX guidance is available at: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html and at https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
(10) Magistrate Judge Jacqueline Scott Corley’s decision dismissing Survjustice, Inc. et al v. Elizabeth deVos and the Department of Education is available here:
https://www.courthousenews.com/wp-content/uploads/2019/11/DOESexAssaultGuidance-JUDGMENT.pdf
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