The Process That is Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-on-Student Sexual Assault Complaints

IntroductionSexual violence, including rape and other forms of sexual assault, is a pervasive problem facing colleges and universities across the United States.1 As many as one in every five women is likely to be raped or sexually assaulted during her college years, most often by someone she knows.2 In fact, women who attend college face a greater risk of being raped than other women in the same age group who do not at» ud college.3 Additionally, the physical, mental, and emotional consequences of rape can be devastating for the victim.4 College-student victims struggle to maintain their grades and attendance and are likely t? * drop out of school.5 Moreover, rape victims are six times more likely to attempt suicide than are victims of other crimes.6 Compounding the rapes and sexual assaults many young women suffer is the equally troubling reality that many victims feel re-victimized by the responses of their schools.7 Yet schools also struggle with the appropriate response to student-on-student sexual harassment and assault.8 Administratorsseeking to implement policies and procedures that are fair to both accused and victimized students often face criticism from both sides.9Congress and the U.S. Department of Education have sought to address the problem of sexual assault in the nation's schools through legislation such as Title IX of the Education Amendments of 1972.10 Most commonly known for promoting equality in sports participation, Title IX prohibits discrimination based on sex in any educational program or activity that receives federal funds.11 Under Title IX, discrimination includes conduct which denies or limits a student's ability to benefit from a school's programs or activities on the basis of that stu- dent's sex.12 Courts and the Department of Education recognize sexual harassment as conduct that is so severe or pervasive that it creates a hostile learning environment, thereby limiting a student's ability to access the full benefits of a school's program.13 Even a single incident of sexual assault can create a hostile environment and constitute sexual harassment.14 Consequently, Tide IX requires schools to respond "promptly] and effective [ly] " to student-on-student sexual harassment and assault to mitigate the effects of the hostile learning environment and to safeguard all students' right to an education free from sex-based discrimination and violence.15In April 2011, Vice President Joseph Biden and U.S. Secretary of Education Arne Duncan announced that the Department of Education Office for Civil Rights (OCR), the agency charged with enforcing Tide IX, was issuing a "Dear Colleague Letter" focusing on sexual assault on college campuses and schools' Tide IX obligations to respond.16 The Department of Education designated the Dear Colleague Letter a "significant guidance document," meaning that it sets forth statements of general policy and interpretive rules of broad, prospective applicability on regulatory and statutory issues.17 The Dear Colleague Letter does not add substantive requirements to Tide IX or its implementing regulations; rather it clarifies OCR's interpretation of Tide IX and its accompanying regulations in the specific context of sexual violence in the college and university setting.18One significant component of the Dear Colleague Letter is its specification of the standard of proof schools must use in campus disciplinary proceedings for sexual assault complaints.19 Prior to the Dear Colleague Letter, OCR had not specified that Tide IX requires schools to use a particular standard of proof in disciplinary proceedings addressing student-on-student sexual assault.20 According to the Letter, however, for a school's disciplinary procedures to comply with Tide IX, the school must utilize the "preponderance of the evidence" standard in adjudications for sexual harassment and assault.21 Thus, a school's use of a higher standard, such as "clear and convincing evidence," would constitute a violation of Tide IX. …