Title IX Sexual Assault Directive Has Just Made College Even Less Friendly for Males

The U.S. Education Department's Office for Civil Rights has just done something most people would not have thought possible. It's made college campuses less friendly for male students.

The OCR has issued a letter dated April 4, 2011 to colleges setting forth unequivocal guidelines for handling claims of sexual harassment, including claims of sexual assault.  The vast majority of such claims, of course, are lodged against male students. In order to be in compliance with Title IX, for all sexual harassment claims (which includes claims of sexual assault) that are brought before college grievance boards, the OCR makes clear that "the school must use a preponderance of the evidence standard," as opposed to the "clear and convincing evidence" standard currently used by many schools.

If that sounds like so much legal mumbo jumbo, it's not. It's a very significant decision.  Let's explain.

To convict someone of a crime, the standard of proof is "beyond a reasonable doubt." What is "reasonable doubt"? It is often described as any doubt that would cause reasonable men and women to hesitate to act upon it in matters of importance to them.

Just below that standard of proof is the one many colleges currently apply to sexual assault cases, a"clear and convincing" evidence standard. What does that mean? It means that to find a party responsible for sexual assault, the school must produce clear and convincing evidence, which is evidence that is substantial and that unequivocally establishes the offense.  Clear and convincing evidence is evidence that establishes a very high probability that the facts asserted are true or exist.

Some claims in civil cases -- the ones that are among the easiest to lie about -- are adjudicated according to a "clear and convincing" standard. For example, in many states, claims for breach of oral contract, promissory estoppel, and fraud require proof of clear and convincing evidence.

The lowest standard of proof, the one most civil claims are required to meet, is proof by a "preponderance of the evidence." That means merely that the proof is more probable than not. If you think of the scales of justice, a preponderance of the evidence is that amount of evidence necessary to tilt the scales ever so slightly in the favor of the party asserting the claim.

Thus, under the new world order, if a female student sues a male classmate for a $100 breach of oral contract case, she would need to produce clear and convincing evidence -- evidence of a very high probability -- that they entered into the contract.

In contrast, because of Title IX, if that same female student brought a "he said/she said" sexual assault claim against that same male, in order to expel him and to permanently blacken his academic record, the school would only be required to prove the sexual assault by applying the lowest standard of proof -- proof by a preponderance of the evidence. If the grievance hearing board finds it believes the complainant's story of the alleged incident over that of the accused by a 50.0001 percent versus a 49.9999 percent margin, he packs his bags and is banned from the school forever.  Forget law school, medical school, and anything else. Good luck explaining that to prospective employers.

If you need further proof of the OCR's blatant bias against presumptively innocent males, the April 4 letter also says that under Title IX, upon an accusation of sexual assault, the school must take appropriate interim measures before the final outcome of the investigation. These measures include separating the alleged perpetrator and the complainant. Fine, but that's not all it says. The letter expressly says the following: "When taking steps to separate the complainant and the alleged perpetrator, a school should minimize the burden on the complainant, and thus should not, as a matter of course, remove complainants from classes or housing while remaining alleged perpetrators to remain."

The inequity speaks for itself.