Three lawsuits accuse the Education Department’s Office for Civil Rights, led by Catherine Lhamon, pictured above, of inappropriately telling schools to use the preponderance of evidence standard in college sexual assault cases.

A group of more than 90 law professors from at least three dozen different universities signed onto a white paper, to be released Sunday, defending the U.S. Department of Education’s guidance on how colleges should handle sexual assault cases.

Specifically, the law professors focus on how much proof is needed to determine whether a student accused of sexual assault is guilty in the eyes of their college or university. 

“Dear Colleague” letter released by the Education Department’s Office for Civil Rights in April 2011 was considered a wake-up call for schools to honor their obligation to handle sexual violence involving students under the gender equity law Title IX.

However, some groups have said a portion of the letter ― which told schools to use the “preponderance of evidence” standard in adjudicating sexual assault allegations as code of conduct violations ― amounted to issuing new regulations without going through a legally required process. It’s currently the subject of three federal lawsuits against the Education Department

The preponderance standard essentially means an accused person can be found guilty if the adjudicator or panel believes there’s a 51 percent chance the allegations against the individual are true. In other words, a jury would rule based on whose side they believe more.

“The national debate over campus sexual assault often deals with pretty deep and complicated legal issues, even for lawyers,” said Nancy Chi Cantalupo, a Barry University School of Law professor who organized the white paper.

“I wanted to help provide a resource to the public about one of those deep and complicated issues, to put the issue in the context of Title IX’s legal history and of our legal system as a whole,” Cantalupo said. “Many people seem to think of the law as just one kind of law: the criminal law, but there are many other kinds of law, including civil rights law.”

The preponderance standard is used in civil lawsuits. In criminal courts, there’s a higher standard to establish someone’s guilt: “proof beyond a reasonable doubt,” meaning there’s hardly any chance the accused person isn’t guilty. 





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