The U.S. Department of Education mandates that schools, colleges, and universities apply the “preponderance of the evidence” standard to determine the merits of sexual violence and sexual harassment grievances. Preponderance of the evidence means that based on an examination of the available information, the accusation is shown to be more likely than not that the alleged conduct occurred.

This is the same legal standard used in most civil lawsuits. Your school’s investigator may explain this standard to you in various inaccurate definitions such as “more than 50% likely to be true,” or “if one side has 50% plus a feather of proof” they are the “winner.” Some training materials for Title IX personnel inaccurately cite this example as coming from an authoritative source such as Blacks Law Dictionary.

These interpretations of preponderance of the evidence are inaccurate because they present a false implication that the school must decide that one student or the other is telling the truth, and that that student’s claims therefore prevail. What if the investigator cannot determine that either student is telling the truth? What if the two student’s narratives appear to be equally likely to be true?

Preponderance of evidence is more than the simplified balance scale given in the above examples. Preponderance “denotes a superiority of weight, or outweighing. The words are not synonymous, but substantially different. There is generally a “weight” of evidence on each side in case of contested facts.”

This is not a simple question of which student is “more believable,” or a requirement to decide that one is more truthful than another. Both students could be equally truthful in stating their perceptions and recollection of the same event, but have perceived it differently from one another.

In determining the Preponderance of the Evidence, the school’s investigator or hearing officers should look at the entirety of the evidence, and determine the extent to which the evidence as a whole demonstrates the truth of each relevant fact. If there is a “superiority of weight” in the evidence as a whole in favor of the truth of the accusation, it should be deemed substantiated. If there is not such a superiority of weight, it should be deemed unsubstantiated. This also means that if there is a conclusion that the evidence shows that the accusation is equally likely to be true or untrue, the school must decide in favor of the respondent.

Your advisor can only assist you in substantiating your claims or refuting the claims against you through experience in working with the concepts of evidence and administrative law. It is one thing to read a definition. Assembling a convincing and well-documented narrative requires experience and creativity.

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Mr. Rose is licensed to practice law in California. Your school cannot prevent you from selecting the advisor of your choice, including an attorney or other professional. Outside of California, Mr. Rose’s assistance is educational advice, and does not constitute legal advice or the practice of law. This website, and all of the materials within it, are offered for informational purposes only, and do not constitute legal or educational advice.
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