The New York Times and BuzzFeed News Quote Justin Dillon on the New Title IX Guidelines
On September 22, 2017, the Department of Education rescinded federal guidelines governing how universities investigate allegations of sexual misconduct, saying the Obama-era rules “lacked basic elements of fairness.” In their place, it issued new guidance that is designed to strike a better balance between the rights of both accused students and their accusers. One important difference is that schools will now have the option of using a higher burden or proof when deciding whether someone is guilty of sexual misconduct on campus.
For an understanding of what these changes mean and why they were made, The New York Times turned to Kaiser Dillon partner Justin Dillon, an attorney who has represented dozens of students in Title IX investigations.
“The vast majority of campus sexual assault cases involve a lot of alcohol and no witnesses, so you essentially have two people who were probably drinking trying to recall events that may have happened weeks, months, or even years before.” That is why, Dillon said, it makes sense to require a higher burden of proof in these cases.
To that end, the Department will no longer require colleges to use the lowest legal standard of proof – “preponderance of the evidence” – in deciding whether a student is responsible for sexual assault. Under that lowered standard, students accused of sexual misconduct faced an uphill battle to avoid life-altering punishment.
Going forward, universities are free to choose to raise the standard of proof required to find misconduct to the higher “clear and convincing evidence” standard, a choice Dillon thinks campus administrators will welcome.
“I would bet most [college] general counsels’ offices are afraid of their Title IX office, not the other way around,” Dillon told BuzzFeed News in a separate interview. “I think that’s about to change in a good way.”
Justin Dillon can be reached at [email protected].