Report: College Sexual Assault Policies Unfair to Accused Students

Authors of the report recommend replacing the ‘preponderance of evidence’ standard used in college sexual assault student disciplinary proceedings.

A lawyers group is arguing that the federal government’s Title IX guidance deprives college students accused of sexual assault of their fundamental rights.

The American College of Trial Lawyers came to the conclusion after commissioning a report by the Task Force on the Response of Universities and Colleges to Allegations of Sexual Violence.

The ACTL recommended colleges use the “clear and convincing” standard of guilt to discipline students for sexual assault.

“The proposal that colleges and universities apply the ‘clear and convincing evidence’ standard strikes a compromise between the ‘preponderance of evidence’ standard of current investigations and the ‘reasonable doubt’ standard applied in criminal proceedings,” Pamela Robillard Mackey, chair of the Task Force, said. “Our recommended standard diverges from the formal guidance issued by the U.S. Department of Education’s Office for Civil Rights, and we expect that it will generate robust discussion and debate, both from victim advocates who may believe it should be lower, and representatives of accused students who may prefer a more stringent standard.”

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Other groups, including 28 members of Harvard Law School, have recently criticized the preponderance of evidence standard, which stipulates that evidence suggests “it is more likely than not that sexual harassment or sexual violence occurred.”

Title IX is a 1972 law designed to protect students from sex discrimination.

Under the administration of former President Barack Obama, formal guidance was given to colleges handling allegations of sexual assault in a 2011 Dear Colleague Letter. The letter directed schools to use the preponderance of evidence standard in order to be in compliance with Title IX.

The ACTL believes that guidance has created a flawed system for handling sexual assaults at colleges.

“Under the current system everyone loses: accused students are deprived of fundamental fairness, complainants’ experiences are unintentionally eroded and undermined, and colleges and universities are trapped between the two, while facing a potential loss of federal funding,” Mackey said.

The ACTL is made up of a leading group of Trial Bar lawyers in the U.S. and Canada.

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