ATIXA Issues Position Statement on Adopting the Preponderance of the Evidence Standard of Proof
Founded in 2011, ATIXA is the nation's only membership association dedicated solely to Title IX compliance and supports our over 3,700 administrator members who hold Title IX responsibilities in schools and colleges. ATIXA is the leading provider of Title IX training and certification in the U.S., having certified more than 4,500 Title IX Coordinators and more than 12,000 Title IX investigators since 2011. ATIXA releases position statements on matters of import to its members and the field, as authorized by the ATIXA Board of Advisors.
KING OF PRUSSIA, Pa., May 28, 2020 /PRNewswire/ -- The debate continues to rage on about which standard of proof federal funding recipients (including schools and colleges) should apply to determine whether a violation of sexual harassment policy has occurred. The Office for Civil Rights (OCR) has long contended, and courts have consistently affirmed, that the appropriate standard is preponderance of the evidence (POTE). Most funding recipients adopted POTE in their sexual harassment policies to remain consistent with OCR and the courts.
OCR recently reversed 20 years of previous guidance by issuing new regulations that permit recipients to choose between POTE and a more stringent standard – clear and convincing evidence (C&C). A recipient's choice, though, comes with strings – the recipient must consistently apply the chosen standard in all grievance processes addressing sexual harassment that involve students and/or employees (including faculty). Whether a college or school may continue to use POTE or must raise the standard to C&C may be dictated by its faculty processes. If an institution relies on the C&C standard in any process (e.g. in a faculty grievance process), then it will have to choose which standard to implement in all processes to satisfy OCR's new consistency requirement.
ATIXA issues this position statement to reiterate ATIXA's consistent position that the POTE standard is the only equitable standard under Title IX, and to encourage its members to uniformly adopt POTE for all sexual harassment allegations involving all students and employees, including faculty. For more information, visit www.atixa.org.
Preponderance of the Evidence (POTE)
ATIXA agrees that recipients are best served by the application of a consistent standard. The POTE standard is not just the only equitable standard of proof (and Title IX mandates equity), POTE is also the legal standard consistently used in adjudicating civil rights claims in the U.S. Title IX's equity mandate means that recipients must have a level playing field for students and employees who become involved in Title IX grievance processes. There is no reason to skew the playing field toward one party or the other in a sexual harassment claim. C&C would enhance protection for respondents at the expense of complainants and, therefore, is not the standard that ensures equity.
This position statement was unanimously adopted by the ATIXA Advisory Board on May 21st, 2020.