The author is not a lawyer, and this shows in the one glaring mistake, which someone not reading carefully might not realize is not a point made either by Catherine Lahmon, the Assistant Secretary for Civil Rights in the Education Department, or by Prof. Nancy Cantalupo of Barry University Law School, both of whom are quoted in other parts of the post. The author writes:
[I]f Title IX complaints were held to a higher standard than a preponderance of the evidence when other civil rights claims are adjudicated by exactly that standard, then it would follow that complainants would be held to a higher standard, i.e., disadvantaged, on the basis of sex, i.e., they would be subject to sexual discrimination.
As I noted originally, under Title VII, employment discrimination claims are adjudicated by a preponderance of the evidence standard, so it is true that until 2011, Title IX complainants about sexual violence and assault did have to satisfy a higher standard of proof. But it is absurd to suggest that constitutes sex discrimination, since the application of the standard is completely gender neutral, just like Title IX itself. (Men are also victims of sexual violence, after all, and have the same standing to bring Title IX complaints as women.) The difference in standard is justified not on the grounds of the sex or gender of the complainants, but on the grounds that the penalties are much more like criminal penalties than civil damages, especially (but not only) in terms of stigma.
Prof. Cantalupo's piece does not really confront the latter point. She argues that the preponderance standard "is the most equal of all standards of proof" and gives two reasons: first, it "allows [alleged] survivors to prevail on their allegations as long as just over fifty percent of the evidence supports their allegations"; second, the higher "clear and convincing" standard gives a "heavy presumption in favor of the accused." The first point is irrelevant: it just states the preponderance standard (a bit inelegantly: it's not that 50% of the evidence must support the allegations, it's that the allegations must be more likely than not true, regardless of the distribution of evidence), but gives no explanation as to why this kind of equality ("51% equality"!) is relevant or desireable. That it makes it easier for alleged victims to prevail is neither here nor there absent an argument for a presumption in favor of complainants. The second point Prof.Canatalupo makes is correct, but she doesn't consider the reasons why such presumptions in favor of the accused are warranted: namely, when the penalties, including the stigma attached to a finding of fault, are severe. It is, of course, true that Title IX is framed as a civil rights statute, but unless one think definitional choices settle the hard questions, that's irrelevant: the question is whether a finding of fault for sexual assault or violence by a university is more like a civil penalty or more like a criminal one. My law school colleague Geoffrey Stone makes a good case for the higher standard of proof here, and I'm largely in agreement with what he says on this issue.
The more interesting point the pseudonymous FP author makes concerns Secretary Lahmon's response to the complaint from Senator Lankford's office that in 2011 the OCR had changed the standard of proof without an adequate opportunity for "notice and comment" on the proposed change. Secretary Lahmon's response is quoted as follows:
The standards outlined in the 2011 DCL stem from the Department’s Title IX regulations, including but not limited to, the requirement that educational institutions adopt “grievance procedures providing for prompt and equitable resolution” of complaints. Prior to the 2011 DCL, OCR had determined in letters of findings issued during multiple Administrations that in order for a recipient’s procedures to be “equitable,” they must use a preponderance of the evidence standard (i.e., more likely than not) to determine whether sexual violence has occurred. As OCR’s practice in these cases confirms, it is Title IX and the regulation, which has the force and effect of law, that OCR enforces, not OCR’s 2011 (or any other) DCL. OCR’s 2011 DCL simply serves to advise the public of the construction of the regulation it administers and enforces.
If one looks at the letter and footnote 17, however, one discovers that Secretary Lahmon simply refers to two earlier Title IX investigations--one of Georgetown, resolved in 2004; and one of Evergreen State University, resolved in 1995--both involving sexual harassment, not allegations of sexual assault or violence. In both those earlier investigations, the OCR asserted that the required standard of proof was preponderance of the evidence, but cited no legislative or judicial authority for that proposition in the Title IX context. What was so important about the 2011 "Dear Colleague" letter issued by Secretary Lahmon's predecessor is that this was the first time independent of the investigation of a particular school that the OCR went on record that all schools had to adopt this standard, even though most had not prior to this point. I'm quite sure Secretary Lahmon's explanation is not going to satisfy Senator Lankford's office, since it shows only that on two prior occasions in the context of school-specific investigations OCR asserted this standard, but that does not do anything to show that there was either legislative or judicial authorization for its application across the boards.
(There is another serious deficiency of Title IX investigations by universities not discussed in any of the preceding: namely, the respondent does not have the right to cross-examine the complainant or the complainant's witnesses, a right even civil defendants have. John Henry Wigmore, the great mid-20th-century scholar of the law of evidence famously said, "cross-examination is the greatest engine for the discovery of truth ever invented," which may or may not be true, but it is clearly very important, and yet it does not exist in any Title IX procedures of universities I am aware of.)
The pseudonymous author at FP asserts "that the number of OCR investigations has been steadily rising, not because the OCR is aggressively seeking out institutions to investigate, but rather because students are increasingly coming to understand their rights under the law." No evidence is cited for the latter proposition, and it seems to me a bit misleading as to what's more likely happening: namely, that the OCR, by lowering the standard of proof and waiving the stick of federal funding loss more vigorously in some early investigations, has sent a signal to both students and to lawyers that it's now easier to prevail than previously. That the Department of Education has not yet pulled federal funding ignores the enormous cost and burden to institutions of having to respond to OCR investigations (see, e.g., this accounting). More seriously, it ignores the cost--which we saw in the Colorado case--namely, that to avoid trouble with OCR, schools will overreach and act unlawfully and unethically.
What is needed is an argument for why it should be made much easier for Title IX complainants to prevail against individual respondents, despite the similarity between the penalties and stigmas for those wrongfully found to be at fault under Title IX and those wrongfully found liable in criminal law. That really is the central issue, though it is not, alas, squarely addressed in any of the discussion at the FP blog.
UPDATE: A brief response to a point made by the FP author in an update she added responding to this post. She is correct that an attorney asserted in a CHE article that holding Title IX complainants to a higher standard of proof would be sex discrimination, but her argument will not prevail in court and she cites on authority for it (I am aware of none, but am happy to be corrected), and it's an awful argument for the reasons already given. The Birmingham case the FP author cites is also irrelevant: that retaliation for reporting sex discrimination is actionable sex discrimination for purposes of Title IX does nothing to establish that a higher standard of proof to prevail on a sex discrimination claim is sex discrimination.