The Legal Debate Over How Schools Use Title IX

Dec 20, 2017

 

Credit Jacob Solis

When Education Secretary Betsy DeVos moved to undo Obama-era rules for Title IX investigations at colleges and universities, it left a lot of questions. Chief among them: what standard of evidence should schools use when they investigate possible sexual assaults? Reno Public Radio’s Jacob Solis has more.

 

In 2011, the Education Department’s Office for Civil Rights issued a Dear Colleague Letter that instructed colleges to use a specific standard in their investigations: preponderance of the evidence.

It’s the standard used in most civil cases, and lawyers generally agree it means whoever has the most evidence on their side -- 51 percent to 49 percent -- wins.

Critics of the Obama Administration’s rules, including DeVos, say it robs those accused of assault of their due process rights.

Ritchie Berger is a leader within the American College of Trial Lawyers.

“There's all some subjectivity to it, but you're just trying to make sure that the person who is investigating or adjudicating these charges realizes that if it's a toss-up, if it's a fifty-fifty or a 51-49, that should be inadequate given the lack of safeguards that are available.”

An ACTL task force recommended early this year that the standard should be changed to clear and convincing evidence.

But some lawyers say there’s nothing wrong with using preponderance of the evidence as a standard. Ann McGinley is a professor at UNLV’s Boyd School of Law.

“The standard is fine. The standard is a standard that we use every single day in court, in every civil case other than some very rare exceptions like fraud cases. But generally this is 99.9 percent of the civil cases that are brought in court are using this standard.”

The current rules say schools can now use either preponderance or clear and convincing evidence, but those are only temporary. Any concrete changes may still be months away.

Jacob Solis is a senior at the Reynolds School of Journalism