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Updated Nov. 8, 2024

If you hear talk of “Title IX” on a college campus, it’s almost certainly a reference to Title IX of the Education Amendments of 1972, the  prohibiting sex discrimination in federally funded educational programs. One of our nation’s most famous — and sometimes most controversial — civil rights laws, Title IX was for many years best known for its impact on college women’s athletics. But the law has other important effects on campuses as well. For example, when it was passed, it explicitly banned most forms of sex discrimination in college admissions.

Importantly, Title IX also requires colleges and universities that receive federal funding (which is virtually all of them, since federal funding includes things like Stafford Loans for students) to prohibit sexual harassment on campus. Unfortunately, in recent years, the government’s efforts to fight sexual harassment on campus in the name of Title IX have sometimes overstepped the bounds of the law and the Constitution. Starting in 2011, ��֭���� led a national fight against the erosion of free speech and due process rights on campus that resulted from the abuse of Title IX. 

FIRE has seen major victories, such as new and long-awaited Title IX regulations issued in 2020 that included badly needed procedural safeguards and free speech protections. We’ve also seen reverses, most prominently the Biden Administration’s rollback of many of those protections in August 2024. But with legal challenges brought by many state attorneys general blocking that rollback in 26 states as of the day they were supposed to go into effect, it’s clear that more people than ever before are paying attention to how this important law affects our nation’s students.

New, improved regulations were almost a decade in the making

On April 4, 2011, the United States Department of Education’s Office for Civil Rights issued new directives regarding how colleges and universities receiving federal funding must respond to allegations of sexual misconduct. 

Among the many provisions in this “Dear Colleague” letter were a requirement that schools use the “preponderance of the evidence” standard when adjudicating sexual misconduct claims, and a requirement that if a university judicial process allows the accused student to appeal a verdict, it must allow the accusing student the right to appeal as well, subjecting the respondent to a result akin to double jeopardy. 

Additionally, the letter discouraged institutions from allowing parties to directly cross-examine each other; as a result, many institutions chose to omit cross-examination from their procedures altogether. Because institutions rarely allowed students to be actively assisted by representatives, and because campus procedures frequently lacked the other procedural safeguards guaranteed in civil and criminal proceedings, students were left with little to protect against inaccurate findings and unjust outcomes.

What is the “preponderance of the evidence” standard, and why is it important on campus?

The “preponderance of the evidence” is a legal term that essentially means “the bare majority of the evidence,” and it may be best understood by putting oneself in the position of a juror in a courtroom trial. At a trial, a jury is presented with evidence that points toward the guilt or responsibility of the party being accused, as well as evidence that points toward his or her innocence or lack of responsibility. If you, as a juror, believe that the evidence, when taken together, weighs even very slightly in one direction, that means you believe that “the preponderance of the evidence” supports that side’s story. Another way of looking at it is that if, after considering all the evidence, you think it is 50.01% likely that one side is in the right, and 49.99% likely that the other side is, you should find in favor of the 50.01% side.

If you find this confusing at first, you are not alone. The preponderance standard represents a huge decrease in certainty from the far better-known “beyond a reasonable doubt” standard most people are familiar with from criminal trials. While many civil trials (such as those involving lawsuits for money damages) use the preponderance standard, criminal trials in the United States require that guilt be established “beyond a reasonable doubt,” which has no neat numerical formula but which is generally considered to mean a certainty level of 90% or higher that the person accused of the crime actually committed it. Many due process advocates, including ��֭����, advocate for a heightened standard of proof called “clear and convincing evidence,” which requires “reasonable certainty” of guilt, thereby decreasing the risk of erroneous guilty findings while not requiring institutional prosecutors to reach the very high standard used in criminal cases. The Supreme Court has green-lighted the “clear and convincing” standard in civil cases involving “quasi-criminal wrongdoing by the defendant,” which mirrors the scenarios taking place in many college Title IX tribunals.

Here’s a quick recap of standards of proof from FIRE’s Guide to Due Process and Campus Justice:

FIRE's Guide to Due Process and Campus Justice

Campus Guides

Guide to legal and moral arguments in support of due process protections that explains their application on private and public campuses.

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Definitions: Standards of Proof

The following different standards of proof are used by various college and university tribunals. They are defined here in the order of how difficult they are to meet, from the most to the least difficult.

Beyond a reasonable doubt: “fully satisfied, entirely convinced, satisfied to a moral certainty”

Clear and convincing evidence: “reasonable certainty of the truth … the truth of the facts asserted is highly probable”

Preponderance of evidence: “more probable than not”

Substantial evidence: “such evidence that a reasonable mind might accept as adequate to support a conclusion”

Some evidence: any evidence at all supporting the charge

(Direct quotations are from Black’s Law Dictionary.)

The reason students should care about this issue is that even though the federal mandate that schools use the lower “preponderance of the evidence” standard in campus sexual misconduct hearings has been withdrawn, virtually every school has kept the standard at that low level — even those that required more certainty before the governmental mandate. So while a student accused of rape might be acquitted in a criminal trial before a court of law, he or she may still be found guilty or responsible by a campus court, where the panel members are not required to be very certain before finding an accused student guilty of sexual assault.

Over the next six years, ��֭���� advocated against these provisions and even sponsored a federal lawsuit arguing that the mandate was unlawful under the Administrative Procedure Act. On September 22, 2017, the Office for Civil Rights issued a new “Dear Colleague” letter rescinding the 2011 letter and related 2014 guidance.

The Department of Education published proposed regulations to replace the rescinded documents in the Federal Register on November 29, 2018, formally inviting the public to comment on them as required under the APA. On May 6, 2020, the Department finalized these regulations largely as proposed, including several provisions guaranteeing respondents important procedural safeguards.

2020: New Title IX regulations guarantee vital fairness protections

The 2020 regulations included many improvements to the fundamental fairness and reliability of campus Title IX procedures to the benefit of all.

Among the procedural protections guaranteed by the 2020 regulations were:

• An express presumption of innocence for the accused;
• live hearings, with both parties entitled to an advisor of choice (who may be an attorney)who may cross-examine opposing parties and witnesses;
• sufficient time and information — including access to evidence — to prepare for interviews and a hearing; 
• impartial investigators and decision-makers; and
• a requirement that all relevant evidence receive an objective evaluation.

Education Dept. issues new Title IX regs with crucial campus due process protections, adopts Supreme Court sexual harassment definition

Press Release

Advocates for free speech and due process on campus won one of their biggest-ever victories today with the finalization of long-awaited new Department of Education Title IX regulations.

Read More

Critically, the regulations defined hostile environment “sexual harassment” in the educational context as it was defined by the Supreme Court of the United States in Davis v. Monroe County Board of Education (1999): behavior “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”This definition provided a clear path for institutions to respond to allegations of misconduct while also protecting students’ expressive rights.

Between the issuance of the 2011 “Dear Colleague” letter and the implementation of the 2020 regulations, students filed more than 230 lawsuits against colleges for allegedly conducting unfair disciplinary procedures. FIREalso sent letters to the government and to universities, wrote countless articles explaining the risk of erroneous guilty findings, and even provided congressional testimony about the problems with enforcement of Title IX on campuses. While much of our advocacy centered on the standard of evidence used, far broader due process issues were uncovered. FIRE studies found that college students had been routinely denied even the most basic elements of a fair hearing, such as notice of what exactly they were supposed to have done, or an explicit presumption of innocence.

2024: A second round of regulations reintroduce threats to free speech, due process

In 2024, the Biden Administration issued new regulations that rolled back some of these vital protections and redefined discriminatory harassment in a way that incentivizes campuses to punish speech protected by the First Amendment—but those changes did not take effect in most states because of court challenges! These changes include:

• Eliminating the requirement that schools allow live cross-examination through an advisor—or any live hearings at all. Instead, schools could demand that questions be submitted in writing to a hearing officer, who would decide whether or not to ask the question, turning what might be a quick back-and-forth in a hearing into a process that could take days or weeks. 
• Allowing the return of the single-investigator model, in which schools can appoint the same administrator who investigates the complaint to be the “prosecution,” “judge,” and “jury” of the process. 
• Eliminating the requirement that schools provide the parties with all of the evidence related to the accusation. Instead, schools only have to provide an “accurate description” of the evidence. If a student asks for the evidence, they can give them only what the school deems “relevant.” Without access to all the evidence, parties have no way to determine whether the school’s judgment of what is “accurate” or “relevant” is correct.
• Expanding what is considered hostile environment sexual harassment to potentially punish a great deal of protected speech and expression. Instead of following the Supreme Court and requiring that behavior or expression labeled “hostile environment harassment” be so “severe, pervasive, and objectively offensive” that it effectively “denies” the victim the ability to get an education, “harassment” only has to be so “severe or pervasive” that it “limits” the victim’s ability to benefit from the educational program. This means that a student might be punished for “harassment” even if all they do is consistently express unpopular but First Amendment-protected opinions on topics like gay marriage, pronoun usage, or even the gender pay gap.

However, because the 2024 regulations also included controversial new rules about what constitutes discrimination against transgender students, they have been far more divisive than in previous years. Attorneys general in more than two dozen states joined a number of nonprofit organizations to challenge the rules in courts across the nation. As a result, on August 1, 2024, the regulations went into effect in only 24 states. Courts halted their implementation in the other 26 states, plus at dozens of individual schools in the remaining 24 states, while litigation proceeds. In those states and at those schools, the 2020-era protections remain in place. Ultimately, the Supreme Court will likely weigh in.

Whether your school is in the half of the country with greater protections or the half with fewer, keep in mind that students facing conduct charges not governed by Title IX remain largely unprotected by procedural safeguards. In order to ensure fair, reliable results, institutions must revise the procedures applicable to non-Title IX charges as well. For those that are not sure where to start or would like assistance revising their policies, FIREwould be glad to help. Institutions can use our Model Code of Student Conduct or email us at dueprocess@thefire.org to work directly with staff to write policies that respect students’ freedom of expression and provide fundamental fairness in disciplinary proceedings.