A former staff attorney for the United States Department of Education’s Office for Civil Rights (OCR) is now denouncing the OCR’s recent formal "Dear Colleague" letter instructing that universities use a "preponderance of the evidence standard to resolve complaints of sex discrimination." The preponderance of the evidence standard, which would allow universities to punish students for offenses like peer-on-peer sexual harassment and sexual assault if the evidence tips above 50 percent in favor of the accuser/alleged victim, is much lower than "the clear and convincing evidence" standard that many university disciplinary proceedings apply and is nowhere near as protective as the presumption of innocence for criminal defendants in a court of law.

Hans Bader writes in a column on the Washington Examiner’s blog that the guidance provided by OCR’s April 4, 2011, letter, if adopted by universities, strips students of their due process rights, contravenes Supreme Court precedent interpreting the responsibilities of universities under Title IX, and violates OCR’s obligation as a government agency to invite comment from citizens before imposing new mandates on universities.

Bader’s column is a must-read for those interested in OCR’s current interpretation of Title IX, which "prohibits discrimination on the basis of sex in any federally funded education program or activity." Ironically, OCR’s recent letter, which would deprive accused students of the due process protection of placing a high burden of proof upon the university before it can punish students, flouts the "notice and comment" procedural obligations of government agencies intended to protect citizens. The letter seeks to apply a new rule to universities without giving citizens the requisite notice and time to comment on the rule. Following the OCR letter would dramatically alter how universities currently handle allegations of sexual harassment and other forms of gender discrimination. According to Bader,

To satisfy this OCR requirement [of applying a preponderance of the evidence standard], schools that have long used a clear-and-convincing standard in disciplinary cases would have to suddenly create a special exception for sexual harassment and discrimination cases, giving people accused of such offenses less due process than they would otherwise receive. This would be a major departure from existing practice for schools, like Harvard Law School. Harvard’s "Policy and Guidelines Related to Sexual Harassment," adopted by faculty vote in April 1995, contains the following provision: "Burden of proof: Formal disciplinary sanctions shall be imposed only upon clear and convincing evidence." The Education Department’s rule also conflicts with faculty collective bargaining agreements mandating a clear-and-convincing standard.

As Bader points out, OCR’s letter is also at odds with a 1999 United States Supreme Court decision holding that universities cannot be held liable in suit by victims of Title IX violations unless the university was "clearly unreasonable" in its response to "known peer harassment." See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). According to Bader, Davis "specifically rejected the argument that complainants have a right to demand particular disciplinary sanctions."

Although some have suggested that many universities already use a preponderance of the evidence standard to resolve disciplinary disputes, this standard is often not protective enough to provide students with due process and a fair hearing, considering the seriousness of the charges. OCR’s improperly thought-out letter, if considered mandatory, would place universities is an unfortunate bind: they can either ignore the guidance formulated in the letter, risking OCR’s penalty, or dispense with the protections necessary to afford students, some of whom are innocent, the due process they deserve when accused of charges as heinous as sexual assault.