Will Raising the Burden of Proof Fix Title IX?

In conjunction with the pending undoing of the Title IX “guidance” letters used to radicalize sexual culpability on campus, a question is being batted around with how far to go to return fairness and normalcy to campuses. This, it should be noted, is because those who are concerned about the impropriety forced down college’s throats are, at the same time, also concerned for the welfare of all students and the eradication of sex discrimination on campus.

The foremost question raised in this discussion is whether the unfairness of the current system can be “fixed” by elevating the preponderance of the evidence standard, as imposed by the Lhamon regime, to clear and convincing evidence. An argument made in favor of preponderance is that it’s the standard used in most, though not all, civil adjudications. Why won’t it suffice here?

But aren’t campus adjudications civil administrative procedures? Not quite. The distinction between civil and criminal is that the former is compensatory and injunctive, while the latter is punitive.  It’s true that campus trials can’t impose imprisonment (though this is also a failing, as a student who has raped, using the proper meaning of the word, may well belong in prison rather than left free to rape again), but that doesn’t mean it isn’t punitive. Indeed, it’s quite punitive.

The consequences of an adverse finding is expulsion, involving substantial harm to a person’s life, career, future, not to mention the forfeiture of however many years of life in college are lost, plus the tuition paid. A quarter million dollars, plus three plus years of opportunity costs, are a very heavy fine. Even worse, being branded with the scarlet “R,” on one’s transcript, in the media, and among one’s friends and around campus, is severe punishment as well. So civil? Hardly.

Even so, why isn’t a preponderance of the evidence good enough? In real life, the burden of proof is more a nicety than a significant safeguard. People don’t really “get” how standards function. It’s easy to discuss it on a theoretical level, but far harder to apply it in the real world. Regardless of what standard is rhetorically demanded, the real world mostly functions on a “more likely than not” basis.

Even in real criminal prosecutions, jurors find it difficult, if not impossible, to acquit a defendant they believe to be guilty, even if proof wasn’t beyond a reasonable doubt. The human desire for fairness compels us to go with the odds, even if the technical burden is otherwise. In other words, even if the standard in campus adjudications was changed to clear and convincing evidence, decisions would be made on the basis of preponderance. It’s just what people do when making decisions, even if they don’t admit it.

However, this hardly answers the question. First, if there was a faithful and principled application of the preponderance standard, the “drunken sex” case would find both students responsible of raping each other. If one can’t consent, neither can the other.

Similarly, if the evidence was “she said/he said,” then the accused would necessarily prevail. The claims would balance without a finger pressing one side of the scale. Hence, the “believe the victim” mantra, to exert undue influence so that the accusation is given unwarranted credence to overcome the otherwise balanced evidence. Thus, the preponderance standard is distorted by the imposition of external beliefs. In other words, it’s not preponderance at all, but a presumption that the victim is truthful and correct and the accused is guilty.

The most significant aspect of the standard of proof that undermines the claim that changing it will fix the lack of fundamental fairness is that it’s merely one prong of a complex system. All the cogs in the wheel of campus adjudication have to mesh for there to be a fair and reliable outcome.

If the test is preponderance of the evidence, then what about the evidence? What about the accused having counsel, because most college kids lack the skills to amass evidence, prepare a cogent defense and present it in a viable way. What about cross-examination, the ability to challenge an accusation, because expecting the accuser to prove the negative is an impossibility. What about the compulsion of evidence from the accused, friends and outside entities?

These are just examples of the array of evidentiary problems faced in an administrative hearing. What’s needed in each is dictated by the facts of each case, but the point is that if the accused is precluded from presenting evidence, either affirmatively or otherwise, then what difference does the standard of proof make? There must first be evidence before it can be judged.

Finally, the adjudication must be fair and neutral, and most importantly, capable. There is a huge dose of hubris in campus adjudications that ask a French Lit prof to have the analytical skills and grasp of evidentiary materiality and relevance of a seasoned Justice. They are usually trained, but that training is itself a problem, involving indoctrination into the “list of really good victim excuses” for whatever ails the accuser’s testimony. Believe the victim. Forgive the victim. She remembers details? Great. She has no memory of details? Even better. This is not training to adjudication, but training to convict. Someone so trained is not likely to apply the standard of proof properly.

The distance between “preponderance of the evidence” and “clear and convincing evidence” sounds much further than it really is. It’s an easy rhetorical step reach, with a few adjectives and a little hand-wringing. When Catherine Lhamon crafted a system to force upon colleges upon pain of defunding, she knew what she was doing.  It was designed to create the minimum appearance of fairness while assuring the outcome would favor the accuser and condemn the accused to punishment. And it has been a spectacular success.

There is no easy fix. No solution will be found in one tweak or two. To advocates and academics, who approach adjudication from a theoretical level, it may appear that there are specific sticking points which, if removed, would enable this Rube Goldberg machine to function sufficiently well to satisfy everyone. It’s a fantasy.

The criminal justice system, offering every bit of due process plus the standard of Beyond a Reasonable Doubt, is a shot in the dark on its best day. Lesser systems, subconstitutional mechanisms, don’t stand a chance. As these adjudications exact a tremendous price on the accuser, there is no easy fix.

15 thoughts on “Will Raising the Burden of Proof Fix Title IX?

  1. Chris Van Wagner

    SHG, this is a topic that needs to be brought into the light of day, so thank you for discussing it. As a Madison, WI defense attorney, I have handled or consulted on many such university disciplinary cases. You have identified the single most troubling part of the system, the “believe the victim” mantra. Here in Madison, where the University was sued several years ago for, in effect, not “believing the victim”, a campus investigator/associate dean admitted to me that as the sexual assault campus “investigator” his job post-lawsuit was simply to expel every young drunken man accused of drunken sexual encounters by someone who woke up hungover and realized she had had equally drunken sex.

    In fact, at one point four years ago, the campus buses were wrapped in a bus-sized ad that said, “You can tell us.” My view? You can tell us you were assaulted even if you weren’t. The folks who hear these cases (paid by the same university whose aim is to placate the federal folks who sued them) take the accuser’s written statements as gospel, even when they contain as many contradictions as the Bible itself. Many a young man’s life has been upturned and disheveled – sometimes permanently – by the exaggerated post-coital gloss given the accuser by her friends and blinders-wearing university “support” persons.

    This system is rigged, and the burden of proof is but one of many frozen parts in it, as you have so accurately described. The sad yet true take-away: the goal of that currently rigged system is to use an exceeedinygly large, unleaky net to insure that a few assaultive sharks are caught and removed along with many non-assaultive minnows. How tragically ironic that in an age when a drunken hook-up occurs more frequently than a handshake, when sex is less significant than a movie date, that the punishment for a hookup, the campus sex assault police are more punitive and less forgiving than even Hester Prynne’s neighbors.

    1. SHG Post author

      I’ve kinda written about this a lot over the past few years. Sorry you hadn’t read it until today.

      1. Amelia

        Yeah. Sorry his life isn’t devoted to reading your blogs. And of course, providing your readership with how a Title IX administrator views their role at a large and well-known public university is just completely irrelevant…..

          1. Ronald

            So I get the point of her first sentence, stupid though it may be, But do you have any clue what she’s talking about in her last sentence?

            1. Dan

              Wait- what? Neither of you deciphered what Amelia asked? Other than using too many dots in her ellipsis, she very clearly restated the original poster’s comment, viz “… a campus investigator/associate dean admitted to me that as the sexual assault campus “investigator” his job post-lawsuit was simply to expel every young drunken man accused of drunken sexual encounters by someone who woke up hungover and realized she had had equally drunken sex.”


            2. SHG Post author

              Some people are more fluent in “unhinged” than others. Some just believe they are. Either way, it’s not a good thing.

    2. B. McLeod

      Actually, “the single most troubling part of the system” is its very existence. Title IX was never intended to establish some alternative, quasi-criminal tribunal for any and all cases with female accusers that have some connection to a campus. This is a batshit crazy product of fanatics, who hijacked an administrative agency and misapplied a law to subjects it simply does not address. All we need to do for “Title IX purposes” is to recognize that fact, and shut the star chambers down.

  2. Erik H

    If only we already had a system with a lot of base knowledge which was already set up to adjudicate this issue and which was available to college students. If only.

    The smart solution would be twofold:

    1) Allow schools to satisfy their title IX liability by offering free transport to the local police station/hospital/etc., and some basic assistance (information or even filing fee assistance for full-ride students) in filing a civil case or restraining order.

    2) Expand the ability of judges to address restraining orders in the college context.

    But seriously, by the time we get to the hearing the damage is already done. Perhaps they should
    A) Require that all interviews be recorded and that recordings be made available to all parties;
    B) In addition to recording, for any evidence used at a hearing, require sworn testimony.

    I know I’m dreaming, though.

    1. SHG Post author

      If only you had stopped after your first paragraph before diving down the rabbit hole like so many others.

  3. B. McLeod

    What we need to do is put these adjudications back to the criminal system, where they belong. While the criminal system is sorting out the allegations, the universities could treat the case like a domestic case, with standard, mutual no-contact requirements for both the accuser and accused. Work schedules around so they aren’t placed in common classes, and wait for the charging decision and trial (if there is one) in the criminal case. Then, accept the result of that case (just as in every other segment of society except the media).

  4. B. McLeod

    I am a “Title IX advocate.” I advocate that Title IX be applied as it was intended, and that the “culture of rape” fanatics go back to Congress to seek the law they want (because it isn’t Title IX).

  5. Fubar

    There is a huge dose of hubris in campus adjudications that ask a French Lit prof to have the analytical skills and grasp of evidentiary materiality and relevance of a seasoned Justice.

    From my forthcoming gargantuan benchbook of Title IX doctrine for French Lit professors, Section 1, Complete Rabelaisian Defense exemplar: In pari délicat

    The burden of proof’s more than eighty.
    And one-fifty-one rum’s not too weighty.
    I ribotes with me wench,
    (Even if she’s not French):
    We say “Aaargh” and drink hardy, me matey!¹

    FN 1: Applicable any day, not just Un jour pour parler comme un pirate.

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