California and Connecticut Codify the “Preponderance” Standard

In the last blog, we discussed the distinction between Title IX and the Violence Against Women Act (VAWA) as it pertains to domestic violence and dating violence allegations on college campuses. The point was made that these cases are properly considered within the framework of the Clery Act/VAWA/SaVE Act (hereinafter VAWA), and not within the framework of Title IX and its “Dear Colleague” guidance letters.

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A critical distinction between Title IX and VAWA is the inclusion of domestic violence and dating violence allegations (as well as stalking) as triggers to the mandates of VAWA. Title IX includes no such triggers in these areas but is instead confined to matters of gender discrimination, including sexual harassment, and sexual assault (which is an extreme form of sexual harassment).

Within the framework of the VAWA mandates lies an important “non-mandate”: there is no requirement that a college or university impose a particular standard of proof in its disciplinary proceedings. The university is free to select the standard of proof that best serves the institution (and its students), and the only mandate from VAWA in this regard is the requirement that the institution describe the standard of evidence it will use in a disciplinary proceeding (see 34 CFR 668, 668.46(k)(1)(ii)). This is a significant difference from Title IX procedures, which purport to mandate that institutions impose a “preponderance of the evidence” standard in adjudicating allegations of sexual harassment in college disciplinary proceedings (as described in the OCR’s April 4, 2011 “Dear Colleague” letter).

In California, however, there is a twist. Pursuant to California Education Code Section 67386:

  • In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)), involving a student, both on and off campus. The policy shall include the following:

(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence. (emphasis added).

Thus, the state of California has entered the arena and required that institutions receiving state funds for student financial assistance impose the “preponderance of the evidence” standard, despite the fact that VAWA specifically does not require it and despite the fact that Title IX’s alleged mandate to use the “preponderance” standard does not have the full force or impact of positive law.

California is not the only state to have implemented the “preponderance” standard for subject institutions within its state. Connecticut, through Connecticut General Statutes Section 10a-55m(b)(5)(B) also requires the imposition of the “preponderance” standard in campus disciplinary proceedings involving “sexual assault, stalking and intimate partner violence.”

Time will tell whether these states are trendsetters or outliers on this issue.

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