New Guidance Looks Likely to Adopt ‘Clear and Convincing’ Standard

The Wall Street Journal reported on Wednesday this week that the Department of Education will issue interim guidance on handling sexual assault investigations on college campuses in the next week or two.  Despite not reporting all of what the interim guidance will include, the Journal did report on one of the expected most-eagerly anticipated and controversial changes.

According to the Journal, the interim guidance will permit schools to immediately adopt the higher “clear and convincing” evidentiary standard of proof in Title IX proceedings on college campuses.  The inclusion of the new standard would replace the lower “preponderance of evidence” standard currently required by the Department.  Generally, the clear and convincing evidentiary standard means that a party must prove that its accusation is substantially more likely than not to be true.  The preponderance standard is understood to mean that a plaintiff’s accusation is more likely than not to be true, in other words, that 51% of the evidence favors the plaintiff’s outcome.  Importantly, the article does not suggest that schools will be required to adopt this higher standard, which would leave schools in states that have state laws requiring the use of the preponderance standard free to continue using that standard.

As of publishing this post, the Department of Education has not confirmed or denied the Journal report.  It is also unclear how, exactly, this evidentiary change could affect campus policies and procedures across the country.  However, HMBR is closely monitoring these develops and will bring you the best and most experienced reaction and guidance when the revised Department guidance is issued.