The controversy of Title IX and college sexual assault proceedings is based on a sort of balancing act: Colleges and universities need to support and protect survivors of assault, but not to the point where it infringes on due process.
A possible move from the Department of Education could change what this looks like.
That's because, according to a report from The New York Times, Education Secretary Betsy DeVos could give colleges the choice between two standards of evidence for Title IX proceedings: "preponderance of evidence" or "clear and convincing."
The first one was the mandated standard under the Obama administration, as well as the lowest standard in general. When courts use it, they decide if the accused is "more likely than not" to have been responsible for a crime. If courts use the "clear and convincing" standard, they have to decide if the accusation is "highly probable." That's more rigorous than preponderance of evidence, but not as rigorous as beyond a reasonable doubt.
In order to understand why this matters, let's talk first about why preponderance of evidence was mandated in the first place.
"Colleges and universities can no longer turn a blind eye or pretend rape and sexual assault don't occur on their campus," then-Vice President Joe Biden said in 2014. "We need to provide survivors with more support, and we need to bring perpetrators to justice."
When the Obama administration worked on Title IX and campus sexual assault reform, its focus was on supporting survivors and holding colleges and universities accountable for assault.
That federal effort was pushed forth years prior with the 2011 "Dear Colleague" letter from the Department of Education's Office for Civil Rights.
The letter guided schools on their obligation to address sexual violence, and it specifically stated that preponderance of evidence was needed in order to be consistent with other civil rights proceedings.
In higher education, this standard of evidence arguably makes sense.
Colleges and universities use their own discretion to choose which students to accept and establish the rules those students have to follow when they arrive on campus.
Because of that, college disciplinary proceedings and punishments are completely different from civil or criminal ones.
More specifically, a college proceeding could end with a responsible party having to change their residence or class schedule, or leave the campus entirely.
A civil or criminal proceeding carries more serious consequences — such as time in prison — that warrant higher standards of evidence.
Not everyone agrees with that understanding of preponderance of evidence — and one of its most notable critics is Betsy DeVos.
"One rape is one too many. One assault is one too many. One aggressive act of harassment is one too many. One person denied due process is one too many," DeVos said in 2017.
When DeVos took the helm of the Education Department, she rescinded the 2011 "Dear Colleague" Letter and specifically criticized its recommendation of preponderance of evidence as federal overreach.
Since 2015, faculty members from law schools such as Harvard argued the same thing. Sixteen faculty members from the University of Pennsylvania's law school said in an open letter: "We believe that OCR's approach exerts improper pressure upon universities to adopt procedures that do not afford fundamental fairness."
In 2017, the American College of Trial Lawyers recommended using the clear and convincing standard of evidence.
A spokeswoman told The New York Times the Ed Department was still deliberating on whether to make the change. But if it goes through, it could have an immediate impact on the hundreds of cases still open or yet to be reported.
As of the beginning of the 2018-2019 school year, 310 federal Title IX investigations remain open. Since 2011, 192 cases have been resolved.
