Title IX investigations have received scrutiny from the criminal defense bar due to the lack of due process involved. Students accused of sexual assault who have never been arrested or charged for any crime are being kicked out of universities based on inadequate investigations and careless attitudes of administrators.
Thursday afternoon, Education Secretary Betsy DeVos spoke at George Mason University, condemning the Obama Administration’s 2011 “Dear Colleague Letter,” a “guidance document” creating specific guidelines for universities to follow upon receiving a complaint of sexual assault from a student.
Title IX and the Burden of Proof
The 2011 letter substantially lowered the burden of proof required for college administrators to determine whether alleged sexual misconduct occurred on campus. From page 10 of the letter: “Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation.”
In the courtroom, a prosecutor must prove a case beyond a reasonable doubt that an alleged perpetrator committed a crime. In Title IX investigations, however, “preponderance of evidence” is the standard of proof needed, which means that it only has to be more likely than not that a student or faculty member committed rape or sexual assault.
Preponderance of Evidence, What Evidence?
One of the most controversial elements of the 2011 letter was its insistence that college administrators, not judges or juries, would be responsible for deciding an alleged perpetrator’s fate. This policy made Title IX investigations a guessing game: Some schools would reach a guilty verdict without a shred of evidence and often ignore exculpatory evidence presented by the accused.
DeVos argues that stripping college administrations of the ability to decide a case on a whim doesn’t only protect the accused; a fair trial based on a higher burden of proof protects accusers as well.
Title IX’s Definition of Sexual Harassment
In her speech, DeVos stated that “Washington has burdened schools with increasingly elaborate and confusing guidelines that even lawyers find difficult to navigate. Schools have been compelled by Washington to enforce ambiguous and incredibly broad definitions of assault and harassment.”
These “broad” definitions were put in place to educate students and prevent sexual misconduct, but Devos believes that they only muddle assault investigations.
What Happens Next?
Because the Dear Colleague Letter explicitly stated that it could not create any new legal obligations, as it was issued without the process of public comment, any Administration could easily retract it with another letter. But DeVos implied that this wouldn’t happen under her watch, declaring, “The era of ‘rule by letter’ is over.” Instead, the agency will engage in the “notice-and-comment” process that Obama Administration skipped.
Through this notice-and-comment process, the Education Department will receive comments from the public to incorporate the insights of all parties. This is a standard legal process for agencies to create and implement legal rules.
Her announcement does not promise that change will come swiftly. Notice-and-comment processes can take months or years, which means the Obama Administration’s policies on sexual misconduct in schools will stay in place for the time being.
Defending Against Title IX Investigations
DeVos’ announcement is being met with both relief and outrage from all sides, but one thing is certain: Title IX investigation processes and standards are under investigation.
If you or a loved one has been accused of sexual assault on campus and need help, contact the experienced Title IX defense attorneys at Berry Law Firm.