One Title IX Size Fits All–Except When It Doesn’t

As I discussed in June, there’s no good reason for a school to give less protection to students accused of sexual misconduct than to faculty. Everyone at a school should get the same rights. That’s easy. But what about among schools—should Title IX look the same everywhere? That’s easy, too—absolutely not.

There’s incredible diversity among the nation’s colleges and universities. Some are large, wealthy research institutions—100 of them have endowments north of $1 billion. Others are small schools that are perennially strapped for cash. Some have large commuter populations; at others, almost everyone lives together on campus. Many are secular; many others are religious, and their religious beliefs inform every aspect of the school. Imposing uniform requirements on schools that diverse can go haywire in unexpected ways.

One of the great sins of the Education Department’s now-rescinded 2011 “Dear Colleague Letter” was its mandate that every school use a preponderance of the evidence standard to judge sexual misconduct claims. Many schools used higher burdens of proof because of the unique reputational harm that comes with being labeled a sex offender. The Education Department said schools had to use the preponderance standard because it’s what’s used in civil lawsuits, where the nation’s civil rights laws are enforced.  True enough—but civil lawsuits also provide for a whole lot more. Parties get to demand discovery from each other. They get to subpoena witnesses. And they get to cross-examine each other at trial. They get a ton of procedural protections to balance the fact that the burden of proof is so low.

The 2011 DCL didn’t require schools to adopt any of those things. (In fact it “strongly discouraged” on paper—and outright banned in practice—schools from using cross-examination.) Put aside what that might say about the Department’s motives and ask yourself—what if the Department had required those things? What would that require?

Well, for one it would require a ton more money. Schools would need full-time, well-trained Title IX personnel, and a lot of them, at all levels of the process, to provide anything resembling the fairness that comes in civil trials. That’s doable at wealthy schools—many in fact have moved toward that, even if partially. But how in the world are small and poorer schools supposed to do that? When we sued the Education Department in 2016 to invalidate the preponderance standard as unlawfully enacted, one of our clients was a small Midwestern school that refused to adopt the preponderance standard precisely because it couldn’t meaningfully give its students due process in the face of that standard. Our client wasn’t alone: When a Senate subcommittee conducted a study on schools’ compliance with the preponderance mandate a few years after it had been issued, it was small schools, far more than large ones, that were refusing to comply with the mandate.

Religious schools provide another clear example of why one size fits all simply doesn’t work, and again it’s the preponderance standard that shows it. At many religious schools, consensual premarital sex violates the code of conduct, consistent with the school’s religious beliefs. Now imagine being a victim of sexual assault at such a school, knowing that your attacker’s defense will probably be that the sex happened but that it was consensual. What happens if you lose? Well, it means that the adjudicator probably believed that consensual sex happened—and that both of you, therefore, committed a conduct violation—because a finding of “not responsible” means it is at least 50% likely, in the adjudicator’s mind, that the sex was consensual. At schools like that, the preponderance standard can actually deter victims from coming forward. That doesn’t happen if the burden of proof is higher—a finding of “not responsible” means only that the evidence did not rise, for example, to a 70-80% likelihood (as most people think of the “clear and convincing evidence” standard). It does not suggest that the sex was consensual and therefore that the complainant has also violated the code of conduct.

Not every school is a major secular research institution. Title IX should not pretend as though they are.  Doing so will result in worse outcomes for victims and falsely accused students alike.

September 23, 2019

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