Changes to Title IX under “Burden of Proof” standards

On September 22, the Department of Education (DE) headed by Betsy Devos, released a statement that announced that the Department would be rescinding Obama era changes to Title IX.

The changes focus on an Obama era Dear Colleague letter from 2011 in which the administration addressed policies concerning sexual assaults on college campuses. The DE has stated that the Obama era policies need clarification and revision.

In tandem, Devos has stated that the DE will go through a revision and review process in order to bring about a policy that will be fair to both accused and accusing parties in college sexual assault cases.

The greater part of the controversy centers on differing views for what should constitute as the acceptable criteria for the burden of proof—that is, the amount of evidence necessary to determine guilt or innocence of the accused party— in college sexual assault cases.

The controversy focuses on two different views of the burden of proof. These are the “preponderance of evidence” standard, and the “clear and convincing evidence” standard.

By using the preponderance of evidence standard, an accuser must prove that his or her case is, more likely than not, the correct version of events. This standard is that, if the accuser can prove his or her case with 51% of the evidence supporting it, then the dispute must be ruled in his or her favor.

According to the DE’s new policy proposal, the burden of proof that will be preferred will be that of the more rigorous “clear and convincing evidence” standard.

There is no numerical percentage that is attributed to the clear and convincing standard. Most legal definitions maintain that the case is clear and convincing if the evidence the accuser presents is “substantially more likely” to be true than that which the accused presents.

Devos, who has made a name for herself as an advocate of school choice, will allow the schools themselves the option of which burden of proof standard they want to use, at least until the DE is finished with its review.

The announcement has been met across the political spectrum with both vociferous support, as well as opposition.

Critics have blasted the DE’s actions for promoting rights of the accused over that of rape victims, while others have also asserted that this move will further promote “rape culture” on college campuses.

“Today, Betsy DeVos and the Trump Administration chose to tip the scales in favor of rapists and perpetrators,” said the advocacy group, End Rape on Campus. “Rolling back this guidance is an affront to the students, survivors, and allies who have fought to bring the sexual assault epidemic out of the shadows.”

Of the rescindment’s many supporters, one of the most notable is the Foundation for Individual Rights in Education (FIRE), a group that defends students’ rights on campus.

FIRE, a critic of the Dear Colleague letter since its inception, has maintained that the Obama era policies stripped students and faculty of their right to due process.

“This makes it impossible for campuses to serve the needs of victims while also respecting the rights of the accused,” the group said.

Schools wishing to keep old policies have sprung up throughout the nation.