In 2011, the Department of Education under President Obama issued a “Dear Colleague” letter to educational institutions receiving federal financial assistance outlining their responsibilities under Title IX of the Education Amendments of 1972 to take steps to ensure an educational environment free from discrimination. One of its more controversial provisions was a requirement that in disciplinary proceedings adjudicating complaints of student-on-student sexual misconduct, the institution use a “preponderance of the evidence” standard in establishing the defendant student's guilt, rather than the higher “clear and convincing evidence” standard that is sometimes used in civil proceedings in which the respondent may be deprived of an important personal liberty right or interest (e.g. termination of parental rights, civil commitment, deportation).

Last November, current Education Secretary Betsy DeVos published new proposed regulations for comment, which among other provisions partially reversed the Obama Dear Colleague letter, and would permit, but not require, educational institutions to use a clear and convincing standard in determining a student's guilt. A number of women's advocacy organizations, as well as some general civil rights organizations, oppose the change and agree with the Obama rule that imposed the mere preponderance standard.

While a student disciplinary proceeding does not have the consequences of a criminal trial in which guilt must be established beyond a reasonable doubt, neither is it the same as an ordinary civil dispute between two private parties over money. A student facing expulsion by a university will suffer life-altering consequences if adjudicated responsible, and we think it not only permissible, but probably desirable under principles of due process, that such a determination be subject to a heightened evidentiary standard to insure against error.

Most forms of serious campus sexual misconduct are also criminal offenses, of course, so there is limited danger that a higher burden of proof in a Title IX proceeding will excuse the most egregious conduct. We recognize that the complaining student's interests in a hostility-free environment might be adversely affected if an incorrect adjudication results from an enhanced evidentiary standard, but that is a risk inherent whenever due process concerns raise the bar. In Santosky v. Kramer, the United States Supreme Court held that termination of parental rights required establishing the unfitness of the parent by clear and convincing evidence. The risk created by Santosky is that a minor child might be returned to the custody of a parent who would otherwise have been deemed unfit but for the heightened burden of proof, and we do not think that the interests of a complainant in an obtaining a favorable adjudication in a Title IX institutional proceeding are so qualitatively greater that they should permit, much less mandate, the lower “preponderance of the evidence” standard. On this issue, Secretary DeVos' proposed regulation is a step in the right direction.