Abstract

Prevention of sexual assault and sexual harassment are major challenges at U.S. colleges and universities today. In recent years a vigorous law and policy debate emerged within the higher education community about Title IX and whether the “preponderance of evidence” or “clear and convincing” evidence represents the more appropriate standard of evidence in campus sexual violence and sexual harassment disciplinary procedures. During the Obama administration the Office for Civil Rights in the U.S. Department of Education issued a 2011 “Dear Colleague” letter recognizing that the preponderance of evidence standard was the appropriate standard for Title IX investigations. The Trump administration’s Office for Civil Rights rescinded this earlier guidance and in November 2018 issued a notice of proposed rulemaking regarding Title IX regulations. The new proposed regulation reflects a “you can have more discretion, if you rachet up” policy: a college can only use the preponderance of evidence standard if it adopts that same standard across-the-board in similarly serious non-Title IX student misconduct cases and in both Title IX and non-Title IX cases where the accused/respondent is a faculty member or employee. If a campus chooses to adopt the clear and convincing evidence standard in Title IX cases, the proposed regulation would not restrict campus discretion in non-Title IX student cases.

While the relationship between the burden of proof and outcomes is complicated and dynamic, the main tendency if campuses were to shift to the clear and convincing evidence standard in Title IX adjudications would likely be a net decrease in accuracy because the rise in “false negative” errors (student or employee commits sexual misconduct but is found not responsible) would outnumber the corresponding decrease in “false positive” errors. By implication, a shift to the clear and convincing standard would also make it more difficult – other things being equal – for campuses to impose disciplinary accountability in cases of serial sexual misconduct and serial sexual harassment.

This article also aims to inform the debate about Title IX and faculty and student disciplinary cases by objectively identifying whether the preponderance of evidence or clear and convincing evidence standard is used in most domains that are reasonably analogous to faculty Title IX-related misconduct proceedings (a more stringent test than looking only at student-to-student Title IX cases). This review includes U.S. federal civil rights adjudications, faculty research misconduct cases linked to federal research grants, civil anti-fraud proceedings, attorney debarment/discipline cases and physician misconduct/license cases. In a large majority of these areas, preponderance of evidence is used as the standard of evidence. This pattern highlights concerns about the Office for Civil Rights selectively referencing cases that support its proposed Title IX regulation and questionable claims about the clear and convincing evidence standard and stigma. This article also raises questions, depending on how the notice-and-comment process unfolds, about the proposed Title IX regulation and the Administrative Procedure Act.

Citation:

Kidder, William, (En)forcing a Foolish Consistency?: A Critique and Comparative Analysis of the Trump Administration’s Proposed Standard of Evidence Regulation for Campus Title IX Proceedings (January 27, 2019).
 

This article originally appeared on SSRN

 

William Kidder

Sonoma State University

William (Bill) Kidder is Associate Vice President and Chief of Staff to the President at Sonoma State University.  He previously served for eleven years in administration management roles within the University of California, including as assistant provost and then associate vice chancellor at UC Riverside, where he oversaw non-discrimination compliance offices.   Mr. Kidder has published extensively about equal opportunity in higher education – connecting social science, law and policy.  Bill’s works include empirical refutation of the so-called “mismatch” hypothesis about affirmative action (Stanford Law Review, Texas Law Review, chapter in Garces & Jayakumar’s recent book); the importance of a respectful and supportive campus racial climate (Journal of College & University Law, CRP monograph); the impact of state affirmative action bans and percent plans (ETS policy report with CRP co-director Patricia Gándara, UCLA Law Review Discourse, Harvard Latino Law Review report for MALDEF); and adverse impacts of standardized testing (California Law Review, Santa Clara Law Review, Yale Journal of Law & Feminism).

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