A White Polemic On Title IX And The Preponderance Standard

Announcing a “white paper” is about as sexy as a new law review article or a doctoral thesis on how icebergs are patriarchal. But trusted ally, Tyler Kingkade, the white knight for fragile women, was there for them, and he would not let the Feminist Lawprofs down. He never has before and it wasn’t going to start now. Integrity be damned. He had a job to do and he would not fail them.

A group of more than 90 law professors from at least 50 different universities signed onto a white paper, released Sunday, defending the U.S. Department of Education’s guidance on how colleges should handle sexual assault cases.

Specifically, the law professors focus on how much proof is needed to determine whether a student accused of sexual assault is guilty in the eyes of their college or university.

A “Dear Colleague” letter released by the Education Department’s Office for Civil Rights in April 2011 was considered a wake-up call for schools to honor their obligation to handle sexual violence involving students under the gender equity law Title IX.

See what he did there? To “honor their obligation to handle sexual violence . . . under gender equity law Title IX”? Not a word that’s accurate, but Tyler brilliantly glossed over all of it to reach his windmill to tilt. Give him credit for shamelessness. But he’s a serious journalist (hey, he works for Huff Post, and if you can’t trust Huff Post, who can you trust?), so he does the obligatory bow to the contrary argument.

However, some groups have said a portion of the letter ― which told schools to use the “preponderance of evidence” standard in adjudicating sexual assault allegations as code of conduct violations ― amounted to issuing new regulations without going through a legally required process. It’s currently the subject of three federal lawsuits against the Education Department.

Of course, the links Kingkade uses are to his own posts, which explain why they’re wrong and he’s right, because he would never lie to you.

But what about this “white paper“? Ignore the racist description, and listen to its mover, who only did this to provide the public with a “resource” to help us to not be misled and see that they are so very right.

“The national debate over campus sexual assault often deals with pretty deep and complicated legal issues, even for lawyers,” said Nancy Chi Cantalupo, a Barry University School of Law professor who organized the white paper.

“I wanted to help provide a resource to the public about one of those deep and complicated issues, to put the issue in the context of Title IX’s legal history and of our legal system as a whole,” Cantalupo said. “Many people seem to think of the law as just one kind of law: the criminal law, but there are many other kinds of law, including civil rights law.”

The “resource” itself might deserve to be dissected to ascertain its substantive validity, but for one problem. Line by line, footnote by footnote, it is an exercise in facile bullshit, artfully worded nonsense that deliberately conflates everything under the sun to achieve its goal. To deconstruct this polemic would require the murder of far too many words, and be far too boring, for anyone other than a dedicated feminist scholar to tolerate.

But that said, there are some cool lines in there worthy of note:

Thus, all available evidence shows that claims that the 2011 DCL did away with supposedly “traditional” standards of proof such as “clear & convincing evidence” are overblown; a substantial majority of colleges and universities were already using the preponderance standard before OCR issued the 2011 DCL.

And what is this “all available evidence”? It’s in the footnotes. Articles. Lots of articles. Apparently, the word “evidence” is to be added to the list of words no longer tethered to definitions.

61 Angela F. Amar,* et al., Administrators’ Perceptions of College Campus Protocols, Response, and Student Prevention Efforts for Campus Sexual Assault, 29 (4) Violence and Victims 579, 584-85 (2014).

62 See Michelle J. Anderson,** The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault, 84 B.U. L. REV. 945, 1000 (2004); Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 122 tbl.6.12 (2002), http://www.hhd.org/sites/hhd.org/files/mso44.pdf.

But that’s not all!

A nuanced appreciation for how difficult it is for either side to establish clearly what happened suggests that the problem of campus sexual harassment requires administrative proceedings to adopt a course different than the criminal law, one that strikes a balance between over-protecting the accused at the expense of victims while providing accused students with ample opportunity and administrative due process protections to contest the case against them.

It’s not just a matter of the standard of proof, but that colleges already provide accused student with “ample opportunity and administrative due process protections.” Bet you didn’t know that. You’re probably not nuanced enough. Remember, these are lawprofs, so they must know something, right?

But while it may be easy to rip the ridiculously contrived “white paper,” the focus on the standard of proof, preponderance of the evidence, may not be as big a deal as those who argue against it might believe. Adjudication is a system, and segregating one small slice of a system doesn’t mean fixing it will make the Rube Goldberg machine work.  The entire system has to work together, function properly as a whole, or even the best standard of proof will fall short.

Consider who is conducting the investigation. Consider who is reporting their conclusions to the adjudicators. Consider who is doing the adjudicating. Consider the “ample” due process. Consider the authority of colleges, and OCR, to have colleges adjudicate “sexual violence.”

This isn’t to say that the proper standard of proof shouldn’t be used. Of course it should, But in context of the sham being perpetrated from top to bottom, if the standard was changed to beyond any doubt whatsoever, reasonable or otherwise, do you seriously think the outcome would be any different given the “college climate”?

Chunking the problems with campus sexual prosecutions gives rise to such nonsense as this white paper, as if it’s just one issue, one fix, that will change the bad to the good. By parsing it out, it played into the hands of shameless advocates, because they will write a disingenuous and facile white paper, sacrifice their academic cred to the cause, and serve their cause. And there will always be some “brilliant journalist with unquestionable integrity” like Tyler Kingkade to make it all seem like it isn’t total bullshit.

*Angela Amar teaches nursing at Emory, and her research “focuses on traumatic experiences.”

**Michelle J. Anderson is the Dean of CUNY Law School and a “leading scholar on rape law.” The first paragraph of her linked post states:

Contrary to the traditional image of college campuses as safe havens for young adults, students, and women in particular, are exposed to high risks of sexual victimization on campus (Fisher, Cullen, & Turner, 2000; Fisher et al., 1998; Koss, Gidycz, & Wisniewski, 1987). Obtaining a postsecondary education should be a time for healthy risk-taking and for social, intellectual and vocational maturation. Victims of campus sexual assault, however, face potential traumatization—intense fear and emotional numbing, loss of control, and the shattering of their trust and their belief in their ability to make sound judgements about the people and the world around them. The cost of this potential loss is inestimable.

And no, she wasn’t writing about the University of Mogadishu.

8 thoughts on “A White Polemic On Title IX And The Preponderance Standard

  1. Billy Bob

    A group of ninety law prawfs? How many did it take to change a lightbulb?
    We already answered this a few months ago, right here. Sorry to interrupt,
    but what’s this all about? We do not have all day, out here on the prairie, in the
    hinterlands and/or on the mountains.

    Seems to me, it’s a case of heads-they-wind, tails-you’re-loose. Now we’re listing to starboard,
    if you catch my drift? Simon and Garfinkel are no help during times/crises like this/these.

    P.S., We never met a traumatic experience that was not a “blessing in disguise”. Amen!
    Ninety-nine professors of law on the wall, ninety-nine professors of law; if one should accidentally fall, ninety-eight professors of law on the wall,… (Not a serious loss; he/she can be replaced in a heartbeat.)

  2. JimEd

    I am at a loss when trying to pick my favorite little snippet from those you quoted. If forced to choose, and it is difficult to do so, my favorite would be:

    “The national debate over campus sexual assault often deals with pretty deep and complicated legal issues, even for lawyers”

    That is just so good. Harnessing the entire nation while dismissing the opinion of anyone competent to comment or advise to the contrary.

    Also, if the response to a white paper like this is “you have got to be fucking kidding me.” What color would it be?

    1. SHG Post author

      Well, us country lawyers ain’t no match for them smart school-learnin’ gals, you know. As for color, that’s easy: definitely black.

    1. SHG Post author

      There were just too many options when it came to paper color metaphors. An embarrassment of riches.

  3. Richard G. Kopf


    If nothing else, you have proven that it is exhausting but illuminating to read citations in footnotes. If only law professors who write “white papers” were subject to the provisions of Federal Rule of Civil Procedure 11 one might be comforted by the fact that the signers actually had some skin in the game.

    All the best.


    1. SHG Post author

      Without admitting anything, I have in the past included a footnote in a memo that led to something that I found humorous, irrelevant and entirely unsupported or unsupportable, just to see if anyone noticed. My experience is that the government checked the footnotes, but the court, not so much. The AUSA and I would get a chuckle out of the experience. But I am not admitting anything, because Rule 11.

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