Federal judge bans low evidence standard in Title IX cases with ‘significant consequences’ for accused

Hearing with cross-examination, evidence in his defense ‘essential to basic fairness’

It’s one judge’s ruling, but if it catches on, it’s a dagger in the heart of the Obama administration’s Title IX guidance, still widely used by universities even though it’s been rescinded.

U.S. District Judge James Browning refused to dismiss due process claims against the University of New Mexico in a five-page order last week.

He told the taxpayer-funded institution that plaintiff “J. Lee” has “alleged facts sufficient to state a plausible Fourteenth Amendment procedural due process claim” against the board of regents and president of the university. (Robert Frank was the original named defendant but has since been replaced by President Garnett Stokes.)

Lee alleged that the university violated his liberty and property interests by ruining his “good reputation” and expelling him for allegedly sexual misconduct.

The public institution deprived him of safeguards including adequate notice of the allegations and opportunity to respond, the opportunity to cross-examine his accuser, identification of “all evidence and witnesses” used to judge him, a “thorough and impartial investigation,” and “active participation” of his lawyer, he claimed.

Judge Browning wrote:

Lee’s allegations plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness. Moreover, the Court concludes that preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.

MORE: Department of Ed draft says bias against accused students violates Title IX

By finding that the long-lasting consequences of a sexual-misconduct finding justify a higher evidence standard, Browning is taking direct aim at the Department of Education’s six-year mandate that colleges use the preponderance standard regardless of the consequences faced by an accused student.

The Trump administration rescinded the Obama guidance a year ago but has allowed colleges to keep the preponderance standard in interim guidance, while also letting them use the higher “clear and convincing” standard.

A leaked draft of proposed binding regulations shows the Department of Education is considering two conditions under which schools can continue using preponderance, known as “more likely than not”: if they also use the standard “for all other discriminatory harassment complaints” or “for other cases of comparable seriousness.”

Browning doesn’t say what evidence standard is proper for cases such as Lee’s, but the judge noted that the university uses different, more protective procedures for nonsexual misconduct cases, which “supports Lee’s claim that the process he received was constitutionally inadequate.”

The judge also faulted the university for waiting until the sanctions hearing to inform Lee that he faced punishment for underage drinking, “when it was too late to prepare an adequate defense.”

Lee’s other claims were dismissed, including the damages he sought against the defendants. Because “the contours of Lee’s due process rights were not clearly established” in law or precedent, the individual university defendants enjoy “qualified immunity” as government actors.

The university’s policies and procedures for sexual misconduct also “lack specific promissory language necessary to create contractual obligations,” so Lee can’t sue for breach of contract, Browning said. Only his claims for declaratory and injunctive relief are going forward.

Browning said he would issue a “memorandum opinion” giving his full rationale for the decision “at a later date.”

According to Brooklyn College Prof. KC Johnson, co-author of The Campus Rape Frenzy, this is the first explicit holding against the preponderance standard’s use in Title IX proceedings, at least in sexual-misconduct cases.

Just in: Fed'l judge concludes that @UNM's use of the preponderance standard (mandated by Obama-era guidance) "is not the proper standard" for campus TIX tribunals, at least in sexual misconduct cases. Two judges (Colorado, Ole Miss) had hinted at this, but UNM is the 1st holding pic.twitter.com/9aq0pDiPPx

— KC Johnson (@kcjohnson9) September 21, 2018