Brandeis will continue using the “preponderance of the evidence” standard in adjudicating sexual assault cases, despite new guidelines from the Department of Education (DOE) which roll back Obama-era requirements for schools to use this standard—the lowest standard of proof—in deciding guilt.
In a 2011 “Dear Colleague” letter, the Obama administration warned universities to get more serious about investigating sexual assault or face loss of federal funding. They mandated schools use “preponderance of the evidence,” in evaluating these cases, which means it is “more likely than not” that an assault occurred. The updated guidelines permit schools to continue using this rule or switch to the more stringent “clear and convincing,” standard, which means it is “substantially likely” the event occurred.
The DOE, under Secretary Betsy DeVos, has been evaluating the Title IX system. This summer, administrators met with sexual assault activists and groups advocating for rights of accused students, who say polices have skewed too far in favor of the alleged victims. “The failed system has clearly pushed schools to overreach,” said DeVos in a speech.
Activists have criticized DeVos’ moves and said confusion surrounding the new standards could discourage more students from reporting assaults.
The September announcement consists a packet of information on how schools should address sexual assault cases, which includes the new flexibility in standards and discussion of “what constitutes an equitable investigation?”
“We have reviewed the interim guidance issued by the DOE and have determined that Brandeis’ current policies and practices are in compliance. At this time, we do not plan on making any changes,” said Andrew Flagel, senior vice president for students and enrollment, in a statement to The Hoot.
Other universities have stated they will not alter their standard of proof, including Tufts and Yale. Connecticut is one of several states whose law mandates use of the preponderance of the evidence standard. Harvard said it is “reviewing” the guidelines, but its Title IX office “know[s] of no current plan to change the standard of evidence,” according the Harvard Crimson.
A footnote in the DOE packet and articles in many news outlets have referenced a Title IX case involving Brandeis. In 2014, a student (J.C.) filed sexual misconduct claims against his ex-boyfriend (John Doe), alleging that Doe initiated non-consensual sexual acts throughout the relationship.
Doe was found guilty on four out of 12 counts of misconduct and received a “Disciplinary Warning” on his academic record. He later filed suit against Brandeis, claiming it deprived him of his rights during the process.
In March 2016, a judge criticized Brandeis’ policies at that time, saying it denied Doe “basic fairness” by not allowing him to know the full charge against him, to cross-examine his accuser or to have a copy of the final report before the sanctions phase or when filing an appeal. Judge Saylor expressed concern with the concept of a Special Examiner’s Process (SEP), whereby “the Special Examiner was simultaneously the investigator, the prosecutor, and the judge who determined guilt.”
Brandeis’ 2012-13 edition of Rights and Responsibilities introduced the SEP for gender-based offenses, as an outside lawyer who would interview witnesses, collect evidence and make a ruling. Brandeis has since updated the process, and now the SE makes a recommendation, but a separate “Outcomes Administrator” determines guilt or innocence. Accused students are now allowed to have an advisor and are given a copy of the examiner’s report before the OA rules.
An analysis of “Doe” from the law firm Goodwin Procter suggested the decision may impact schools’ implementation of the “Dear Colleague” letter.
“Brandeis did not expressly defend its procedures on the ground that they were required by Title IX; the court recognized, however, that the loosening of due process protections at Brandeis and elsewhere ‘has been substantially spurred’ by the Dear Colleague Letter,” it says. “But other than the lower preponderance standard, which the court found ‘not problematic, standing alone,’…most of the procedural changes adopted by Brandeis, including the deprivation of a hearing and of an effective appeal, were not required by the Dear Colleague.”
The analysis said Doe demonstrates how courts “may be growing wary of universities’ overbroad interpretation of the Dear Colleague Letter.”
In a Sept. 24 campus wide email, Brandeis initially did not specify what it planned to do regarding the DOE announcement. “I want to assure our community that our commitment to preventing, reducing, and ultimately eliminating sexual misconduct on our campus remains unwavering and unchanged,” the message, signed by Flagel, reads. “We will continue to use investigative processes that demonstrate the highest standards of fairness and accountability.”
This email also notes the Brandeis Task Force on Sexual Violence reviews Brandeis’ efforts and policies related to sexual violence, including “compliance with state and national policies.” Members will likely discuss the DOE guidance, Flagel told The Hoot, though he emphasized the task force “operates independently.”