Responding to the New Title IX Guidelines

If colleges choose to increase the standard of proof, they should recognize the impact it will have and prepare to mitigate it, write Josh Gupta-Kagan and Mary Eschelbach Hansen.

November 28, 2017

The Trump administration’s rollback of Obama-era guidelines for how colleges and universities should decide misconduct cases under the gender-equity law Title IX will likely lead to fewer disciplinary actions for students accused of sexual assault. For victim advocates and others concerned about the effects of the rescission, fewer disciplinary actions represents a step back. Without a doubt, higher education institutions must carefully consider whether to raise the standard of proof. At the same time, and equally important, they must continue working to create safer campuses.

What happens when the standard of proof changes for administrative procedures involving allegations that are hard to prove? Generally, it’s difficult to examine the impact of the standard of proof in many areas of the law because standards are the same in all 50 states and seldom change.

But we are able to predict fewer disciplinary actions will occur in campus sexual assault cases based on our recently published research on a particular procedure -- the substantiation of reports of child abuse -- in which the standard of proof does differ across states and recently changed in several states. We analyzed eight million reports of child abuse and neglect across the United States from 2000 through 2012. And we found that when the standard of proof increased, it became harder for those tasked with evaluating evidence to substantiate reports of child abuse. It became particularly hard to substantiate the hard-to-prove allegations, including sexual abuse. Indeed, the likelihood of substantiation of reports such as sexual abuse dropped by about 17 percent, according to our analysis.

Clearly, standards of proof matter and have an impact on the outcome of procedures. Our findings serve as a cautionary warning for colleges and universities because substantiation is similar to a campus Title IX proceeding -- in which trained professionals must decide if sufficient evidence exists to determine that allegations of misconduct are accurate and impose consequences connected to those findings. Consequences can be serious, if less severe than punishment handed down by a court. In a Title IX proceeding, for example, a perpetrator can be expelled from a college or university.

The Trump administration says higher education institutions may now choose to require that there be “clear and convincing” evidence to discipline students in Title IX sexual assault cases. (It’s a choice that raises the standard of proof and reverses Obama-administration guidance that colleges enforce discipline when the evidence shows that the accused is “more likely than not” to have committed sexual assault.) Because the proceedings on campuses and in child welfare are similar, our research provides the best available estimate of what is likely to happen in the campus environment. If colleges choose a higher standard of proof and there is a 17 percent decline in findings that sexual assault occurred, as we found to be the case with child abuse, then roughly one in six alleged sexual assault perpetrators who would have been disciplined under the previous guidelines will avoid such discipline.

So how should institutions approach the choice of standard? Essentially, college administrators must decide how to allocate the risk of error between the accuser and the accused. A college that accepts the invitation to switch to the higher standard of proof has decided to increase the weight it places on the possibility that an alleged perpetrator experiences some undeserved cost. The costs include expulsion and transfer, or other discipline, and the attached stigma. In fact, such a college has decided that protecting innocent students from enduring these results is more important than protecting sexual assault victims from enduring the impact of an inaccurate exoneration. In contrast, a college that maintains the standard of “more likely than not” has decided that the shared interests in protecting all students from sexual assault and sexual misconduct balance the interests of the accused in avoiding an erroneous finding.

If colleges choose to increase the standard of proof, they should recognize the impact it will have and prepare to mitigate it. After an increase in the standard in child welfare, states were more likely to provide family preservation and other social services to a child and family that was the subject of an abuse report. That is, states that changed the standard also worked harder to keep at-risk children safe with their families.

Colleges and universities that raise the standard in Title IX proceedings should follow that lead and work harder to create the safe campus environment that the authors of Title IX envisioned in the first place. One of our colleges, American University, encourages its community members to stand up for each other in social situations, for instance, by preventing an inebriated peer from being alone with someone who may be likely to take advantage of their inebriation. Such bystander intervention can both prevent individual instances of possible assault and change cultural norms that permit assaults. For more ideas to reduce the incidence of campus sexual assault, colleges can look to recommendations from the Centers for Disease Control and Prevention’s -- such as intervening in pockets of hypermasculine culture and increasing monitoring of unsafe areas on the campus. Due process and public-health protections go together in child-welfare law, and the same should hold true for colleges that choose to raise the standard of proof.


Josh Gupta-Kagan is an assistant professor at the University of South Carolina School of Law, and Mary Eschelbach Hansen is a professor of economics at American University and the author of the forthcoming book Bankrupt in America (University of Chicago Press).

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