Against the backdrop of the Trump administration’s pending changes to Title IX regulations, William Kidder posted a new article in the Journal of College & University Law that delves deeply into social policy questions around the standard of evidence (“preponderance of evidence” or “clear and convincing” evidence) in Title IX and other contexts. Among his key findings noted in the abstract:
[T]he main tendency if campuses were to shift to the clear and convincing evidence standard in Title IX adjudications would likely be a net decrease in accuracy because the rise in “false negative” errors(student or employee commits sexual misconduct but is found not responsible) would outnumber the corresponding decrease in “false positive errors.”
[T]he clear and convincing standard would also make it more difficult – other things being equal – for campuses to impose disciplinary accountability in cases of serial sexual misconduct and serial sexual harassment.
The article also reviewed other, similar adjudicatory contexts, such as U.S. federal civil rights adjudications, faculty research misconduct cases linked to federal research grants, civil anti-fraud proceedings, attorney debarment/discipline cases and physician misconduct/license cases, to determine which standard of evidence is used. The author found that in a large majority of these areas, preponderance of evidence is used as the standard of evidence.