The Title IX Coordinator/Investigator and the Preponderance of Evidence standard

1. The Title IX Coordinator/Investigator and the Preponderance of Evidence standard Melissa Flores, Associate General Counsel, Sr. Compliance Office of the General Counsel Maricopa County Community College District

2. The Basics • In almost every legal proceeding, the parties are required to adhere to important rules known as evidentiary standards and burdens of proof. • These rules determine which party is responsible for putting forth enough evidence to prove or defeat a particular claim and the amount of evidence necessary to accomplish that goal.

3. Evidentiary Standards: Civil Court • Preponderance of the Evidence: Judgment in favor of the complaining party if he/she is able to show that a particular fact or event was more likely than not to have occurred. 2. Clear and Convincing Evidence: Judgment in favor of complaining party if he/she is able to show there is a high probability that the alleged fact/event is true or did occur. 3. Substantial Evidence: Judgment in favor of complaining party if he/she is able to provide enough evidence that a reasonable mind could accept as adequate to support a particular conclusion.

4. Evidentiary Standards: Criminal Court • Beyond a Reasonable Doubt: The “beyond a reasonable doubt” standard is the highest standard of proof that may be imposed upon a party. In criminal court, this standard requires the prosecution to show that the only logical explanation that can be derived from the facts is that the defendant committed the alleged crime, and that no other logical explanation can be inferred or deduced from the evidence. The US Supreme Court in Victor v. Nebraska, 511 U.S. 1 (1994), described this standard as “such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof .

5. 5 Principles of Preponderance Standard • Levels the playing field Preponderance means “more likely than not.” This does not mean “whether we like it or not,” meaning it is not intended to deprive anyone of their rights. It is meant to ensure no advantage to one party over another.

6. Receiving Information and/or a Complaint • The investigation begins with a review of the complaint, police report (if there is one), witness statement, e-mail, text, or other source of information notifying the college of the incident. • Ask yourself: Is this even a complaint and should it be investigated? • What is the possible violation alleged? • What is the specific conduct alleged that, if true, may constitute a policy violation?

7. 5 Principles of Preponderance Standard 2. Easily met Preponderance is a minimal and easily met standard. You should not be looking for compelling proof. 3. Who do you believe If you simply believe one party and not another, a preponderance can be met by that alone.

8. 5 Principles of Preponderance Standard 4. Definition Black’s law dictionary calls preponderance 50% plus a feather; so in a complaint where the evidence is even, any slight evidence leaning towards one side is enough. Also, when there is no evidence the complainant is lying and no evidence to support why a complainant would be motivated to invent a story or distort the details, that could be enough.

9. 5 Principles of Preponderance Standard 5. Benchmark Consider a preponderance as one extra grain of sand on one side of the scales of justice. If you believe you need more than one grain of sand to tip the scales, you are not following the preponderance of evidence standard.

10. September 2017 DOE Guidance The new guidance from the department grants colleges the ability to: • set their own evidentiary standard for misconduct findings, • pursue informal resolutions such as mediation and • establish an appeals process for disciplinary sanctions. It also includes a focus on protections for accused students.

11. Standard of Evidence—new guidance Colleges can apply either a preponderance of evidence standard or a clear and convincing evidence standard to reach findings about alleged misconductand that the selected standard must be consistent with the standard of evidence used with other forms of conduct violations.

12. Additional Changes in Guidance 60 days to complete an investigation: New guidance says there is "no fixed time frame" under which a school must complete a Title IX investigationand the OCR will evaluate a school’s good faith effort to conduct a “fair impartial investigation in a timely manner.” Final Reports: The investigation should result in a written report summarizing the relevant exculpatory and inculpatory evidence.

13. Additional Changes in Guidance Appeal Process: Campuses may opt to set an appeals process policy that allows appeals by both parties or by accused students only. Mediation: Where colleges determine it is appropriate, the new guidelines say they may facilitate an "informal resolution" such as mediation. Decisionmaker: The person who imposes sanctions may be the same person who made the finding of responsibility (complaint determination).

14. INVESTIGATING APPROPRIATELY • Identify the objective criteria governing the investigation. At the outset of an investigation, it is important to set forth the objective criteria that will govern the outcome of investigation. • Avoid focusing on early hypotheses and recognize the potential for all possible outcomes. Avoid anchoring your investigation in early theories based on partial or incomplete information. Write down multiple possible explanations in order to consider alternative scenarios. Sometimes the best proof that certain events occurred is to consider/eliminate alternative explanations.

15. More • Find commonality with witnesses. Prepare for interviews by learning as much as possible about interviewees to facilitate a comfortable discussion. Find something that creates common ground, especially with witnesses who are from out-groups relative to the interviewer. Make sure to ask appropriate follow-up questions of persons in both groups to allow for context and explanations. Look for consistency in the witness testimony. • Open-ended questions. When conducting your interviews, ask more open-ended questions than closed questions. Open ended questions are shown to reduce confirmation bias and minimize priming of witnesses by investigators.

16. More • Obtain and consider all relevant evidence. In today’s world, electronic communications are a critical resource for evidence in investigations. Read the entire chain of email or text conversations, rather than merely a single section that supports the hypothesis. Ask both sides for the same evidence, particularly given that electronic evidence can be easily manipulated. Do not presume that the email or text string that was provided by one side is complete or accurate. Ask witnesses what additional information you should be considering—if grades or class/work attendance are implicated, check grades and attendance records. Seek out information that could alter or conflict with the allegations and, when it is identified, give it appropriate consideration. Never fail to seek out important information simply because it is difficult to obtain (known as availability bias). Conduct follow up interviews, when necessary, to fill in gaps.

17. More • Prepare a detailed chronology of information and evidence. Organize information and evidence chronologically in a timeline to understand the historical context and implication, rather than pointing to individual pieces of information out of context. Allow sufficient time for evidence to develop and avoid explanations for failure to completely investigate (e.g., heavy workload, insufficient resources, unavailability of witnesses, difficulty in obtaining evidence).

18. WHAT ARE YOUR QUESTIONS?