With all due respect to Emily Renda and The Cavalier Daily managing board, it appears that neither fully understands the law regarding burdens of proof in sexual misconduct grievance proceedings at the University. The crux of their positions seems to be that a tension between the Due Process Clause of the Fourteenth Amendment and Title IX prevents the University from imposing meaningful punishments upon those who are found to have committed sexual misconduct as a matter of law. Indeed, The Cavalier Daily wrote that “[t]he University is legally stuck.” But that is simply not so, because the law is not nearly as unambiguously clear as Ms. Renda or Thursday’s editorial make it seem.

To begin with, Ms. Renda mischaracterizes (albeit unintentionally, I am sure) the holding of Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews decided how much procedure must be provided to those denied Social Security benefits; the case had nothing to do with “balanc[ing] due process and Title IX when handling campus sexual-assault cases” as Ms. Renda asserts. Mathews is relevant to this issue only in that it set forth the factors that courts must consider when deciding how much process is due to one who has been denied a property or liberty interest protected by the Fourteenth Amendment, which includes a University students’ interest in obtaining his or her degree. But neither the Fourth Circuit nor the Supreme Court have actually applied the Mathews factors to determine what the burden of proof in sexual misconduct grievance proceedings at a university must be. And it is worth noting that Mathews also applies to Honor and UJC proceedings, not just the Sexual Misconduct Board — so if the Board has different rules it must follow, those cannot derive from Mathews alone. And it is not established that Title IX requires different rules.

As a matter of statutory interpretation, it is not clear that Title IX mandates a preponderance of the evidence standard in sexual misconduct grievance proceedings. Indeed, the phrase “preponderance of the evidence” appears nowhere in Title IX, nor in the regulations promulgated by the Department of Education pursuant the powers granted it by Congress through Title IX. It is true that the Department’s Office of Civil Rights (OCR) has asserted in a “Dear Colleague” letter that Title IX mandates a preponderance standard; however, until and unless a court agrees, OCR’s bare assertion is not a legal fact. It is doubtful that OCR’s letter is even entitled to the legal deference from the courts (known as Chevron deference) that many agency decisions are entitled to.

Deference aside, there are solid legal grounds to question OCR’s conclusion regarding burden of proof. To support its position, OCR cites the Supreme Court’s approval of the preponderance of the evidence standard in the context of Title VII litigation in Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) and Price Waterhouse v. Hopkins, 490 U.S. 228, 252-55 (1989). However, these cases involved claims for monetary damages brought by employees against their employers as a result of workplace sexual discrimination under Title VII — precisely the type of “monetary dispute between private parties” that the Supreme Court has identified as properly the province of the preponderance of the evidence standard. See Addington v. Texas, 441 U.S. 418, 423 (1979). In other words, the cases OCR relies upon do not even interpret Title IX, and are, at best, persuasive (as opposed to binding) authority.

Additionally, federal courts interpret statutes in ways that that do not violate the Constitution, a rule of statutory interpretation known as the “canon of constitutional avoidance.” As Ms. Renda notes, one of the Mathews factors is the risk posed by “erroneous deprivation,” and the Court might well decide that the possibility of being labeled as a sexual offender poses a greater risk than being deemed to have violated civil securities laws. In fact, in cases where “the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight,” the Court has held that use of the preponderance of the evidence standard is “inconsistent with due process.” See Santosky v. Kramer, 455 U.S. 745, 758 (1982) (applying the Mathews factors). In the educational context, the Supreme Court has further held that when “a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” due process requires “precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.” See Goss v. Lopez, 419 U.S. 565, 574, 580 (1975) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). Thus OCR’s interpretation of Title IX as requiring a preponderance standard to adjudicate sexual misconduct cases might run afoul of the canon of constitutional avoidance, and it is entirely possible that a court confronted with that question might require a higher evidentiary standard.

The point here is that the University could set up a system which applies a higher evidentiary burden and imposes harsher punishments on sexual offenders. That is to say, it is not clear that such a system is illegal, and there are good reasons to believe that a court might actually uphold it. But by doing so, the University might have to fight the Department of Education in court; and if the University won, it would probably mean that the Sexual Misconduct Board and its analogues at universities across the country would have to apply a higher evidentiary standard than a preponderance of the evidence. That might be a politically unpopular result in some quarters. But doing nothing has costs as well; it means that sexual assault goes under-punished and under-deterred at the University, with all of the negative effects on victims which that fact entails. Neither of these options is particularly palatable; but that is not the same as being “legally stuck.” The University has at least two options: 1) decide that harsher punishments for sexual offenders is more important, and fight the Department of Education; or 2) decide that the benefits of a preponderance standard are more important, and do nothing. In other words, doing nothing is a choice in and of itself, and we should not entirely absolve the University of its consequences. And we should certainly not excuse the University from being tough on rapists simply because rape cases often have problems of proof, or that expulsions based on rape are frequently appealed. So what? The University has lawyers and can litigate appeals; and some cases will have plenty of evidence, even if many, or even most, do not.

But perhaps there is a middle way. One could imagine a system in which all sexual misconduct cases were adjudicated through the Sexual Misconduct Board with its preponderance of the evidence standard, while the more egregious of those offenses (where the evidence was strong) might subsequently be the subject of a de novo proceeding (similar to an honor trial) taking place after any Sexual Misconduct Board proceedings are concluded. These parallel systems would ensure that every victim would have access to a preponderance standard at minimum (thus likely satisfying even OCR’s view of the law), but not at the cost of denying victims more meaningful relief in cases which warrant it.

To summarize, it is not at all clear that Title IX requires a preponderance of evidence standard in sexual misconduct proceedings, and it will not be clear until a court says so. But even presuming that Title IX does require a preponderance standard, both due process and Title IX can be likely be satisfied by creating a parallel single sanction adjudication system with a higher burden of proof. It is possible that this would result in litigation or controversy between the Department of Education and the University. But that fact does not mean that such a system is illegal — it means only that we have not yet determined its legality. Shouldn’t we try?

Ron Fisher is a third-year Law student.