By Devi Rao
The recent revelation that Yale quarterback and would-be Rhodes Scholar Patrick Witt was accused of sexual assault illustrates the importance of transparent and robust grievance procedures for addressing incidents of sexual violence at schools. The victim filed an informal complaint instead of participating in the school’s formal adjudicatory process for sexual harassment and assault allegations. It is perhaps unsurprising that she would choose the more informal route—even though that route, curiously, offers no possibility of disciplinary consequences for the accused—as those who come forward with allegations of sexual assault on their college campuses often find that the experience of dealing with their schools’ formal, cold, bureaucratic, and often unhelpful processes can be traumatizing. These are the types of barriers that those who experience sexual assault all too often face when they attempt to seek justice through their schools’ grievance processes.
But last spring, the U.S. Department of Education’s Office for Civil Rights (OCR) issued guidance reminding schools that sexual harassment, including violence, is a form of sex discrimination that schools must take seriously and treat as a civil rights issue. The Guidance was needed to help schools, colleges, and universities more effectively prevent and respond to sexual harassment and violence on their campuses, as required by Title IX.
As NWLC explained in a letter of support to OCR, the Guidance highlighted an issue that may seem dry and procedural, but that in fact is essential to fair resolutions of campus complaints of sexual harassment, including violence—that Title IX requires schools to use the “preponderance of the evidence” standard of proof for its investigations of such claims. In other words, a campus investigation into allegations of sexual harassment or violence must ask: “Based on the evidence presented, is it more likely than not that this happened?”
Contrary to the claims of critics, this is the correct legal standard. The requirement that schools employ the preponderance of the evidence standard is neither new nor onerous; in fact, OCR’s guidance on this point merely reiterated its earlier policy, with which many schools already comply. OCR’s clarification of the proper standard helps to ensure that schools’ treatment of sexual violence complaints is consistent with its other investigations under Title IX and similar civil rights statutes, and with courts’ handling of civil cases more generally. And the standard is consistent with Due Process requirements.
Ultimately, the use of a higher standard of proof in these types of cases would be inequitable because of the well-documented biases faced by those who report sexual harassment, including violence.
Almost 40 years since the passage of Title IX, sexual harassment and incidents of assault in schools are all too common. If women are to have equal access to educational opportunities, they must feel safe on campus and have confidence that their schools will handle fairly any allegations of sexual harassment or assault. This is not too much to ask of our nation’s educational institutions.