“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Title IX is the federal law that prohibits sex-based discrimination in federally funded schools, colleges, and universities. New Title IX regulations detail the process that schools must follow when dealing with sexual misconduct cases. The new rules provide guidelines for the investigation process-from filing a complaint to conducting live hearings. The rules also state what standards of evidence are to be used during an investigation, and who has the burden of gathering all the evidence.

Burden of Proof: Civil Case vs. Title IX Case

In a civil case, the burden of proof-that is, the burden of convincing the “decider of fact” (court/jury) that the allegations made are more likely than not true-falls on the plaintiff. In a Title IX case, the burden of proof and of gathering evidence does not fall on either the complainant or the accused, but instead, it falls on the school. That is not to say that the school must side with one party, or that the parties cannot gather evidence and make arguments on their own behalf.

Schools must not restrict the ability of the parties to discuss the allegations or gather evidence.

Even though schools are expected to impose interim measures as part of their mandatory response obligations, the goal of these measures is to ease tensions and to prevent the matter from escalating outside of the formal process. Both parties must still be allowed to freely discuss the case, talk to witnesses (including expert witnesses), and gather evidence.

Schools have previously given ‘ gag orders as a means of keeping the case under control while investigations are going on. Students who violate such gag orders are often threatened with or given sanctions, leading many to believe that the real purpose of the gag order is to protect the reputation of the school. Under the Final Rule, schools are no longer allowed to impose gag orders.

The preponderance of Evidence vs. Clear and Convincing Evidence

The Final Rule requires the school’s grievance process to state whether the standard of evidence to determine responsibility is the preponderance of evidence standard or the clear and convincing evidence standard.

Before the new regulations have were released, the standard of evidence used in Title IX cases was widely the Preponderance of Evidence Standard-where the evidence must show that the allegations are more likely to be true than not. By August 2020, schools will have the option of Clear and Convincing Evidence Standard-where the evidence must show that the allegations are highly or substantially more likely to be true than the not-the same standard used in most civil cases. (Note, that in the criminal context, the burden of proof is extremely high–“proof beyond a reasonable doubt.”).

Put simply, in the Preponderance of Evidence Standard, the level of persuasiveness must be greater than 50%, while in the Clear and Convincing Evidence Standard, it must be substantially greater but need not be 100% or even beyond a reasonable doubt.

Who benefits more from the new Title IX regulations is a subject of debate among victims’ rights advocates and the proponents of the new rules. Many view the stricter standard and the live hearing process as a roadblock for victims of sexual misconduct. But without these new standards and due process, those wrongfully accused may face harsh sanctions, as many did before.

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If you are looking for advice on a Title IX issue, call to get a free consultation with the attorneys at Marcilliat & Mills PLLC. We have years of experience defending students (and professors) in Title IX matters across North Carolina.

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