The Process That is Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-on-Student Sexual Assault Complaints

Abstract

In April 2011, the U.S. Department of Education Office for Civil Rights issued a “Dear Colleague Letter” to colleges and universities clarifying their obligation, as a condition of the receipt of federal funding under Title IX, to respond promptly and effectively to complaints of student-on-student sexual assault. The Letter explained that schools must, among other requirements, use the “preponderance of the evidence” standard of proof in campus disciplinary proceedings for student sexual assault complaints. Commentators quickly criticized the use of the preponderance of the evidence standard as violating accused students' due process rights. This Note examines the history of the due process rights of public school students and applies the Supreme Court’s Mathews v. Eldridge procedural due process balancing test to demonstrate that the preponderance of the evidence standard adequately protects accused students’ rights. When the accused students’ individual interests are balanced against a realistic assessment of the risk of erroneous findings and the significant competing interests of colleges and universities in the particular context of student-on-student sexual assault, it becomes clear that schools may comply with Title IX without jeopardizing the rights of accused students.