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53 B.C. L. Rev. 1613 (2012)
The Process that is Due: Preponderance of the Evidence as the Standard of Proof For University Adjudications of Student-on-Student Sexual Assault Complaints

handle is hein.journals/bclr53 and id is 1625 raw text is: THE PROCESS THAT IS DUE: PREPONDERANCE OF THE EVIDENCE AS THE STANDARD OF PROOF FOR UNIVERSITY ADJUDICATIONS OF STUDENT-ON-STUDENT SEXUAL ASSAULT COMPLAINTS Abstract: In April 2011, the U.S. Department of Education Office for Civ- il Rights issued a Dear Colleague Letter to colleges and universities clar- ifying their obligation, as a condition of the receipt of federal funding under Title IX, to respond promptly and effectively to complaints of stu- dent-on-student sexual assault. The Letter explained that schools must, among other requirements, use the preponderance of the evidence standard of proof in campus disciplinary proceedings for student sexual assault complaints. Commentators quickly criticized the use of the pre- ponderance of the evidence standard as violating accused students' due process rights. This Note examines the history of the due process rights of public school students and applies the Supreme Court's Mathews v. El- dridge procedural due process balancing test to demonstrate that the pre- ponderance of the evidence standard adequately protects accused stu- dents' rights. When the accused students' individual interests are bal- anced against a realistic assessment of the risk of erroneous findings and the significant competing interests of colleges and universities in the par- ticular context of student-on-student sexual assault, it becomes clear that schools may comply with Title IX without jeopardizing the rights of ac- cused students. INTRODUCTION Sexual violence, including rape and other forms of sexual assault, is a pervasive problem facing colleges and universities across the United States.1 As many as one in every five women is likely to be raped or sex- ually assaulted during her college years, most often by someone she I See HEATHER M. KARJANE ET AL., NAT'L INST. OFJUSTICE, SEXUAL ASSAULT ON CAMPUS: WHAT COLLEGES AND UNIVERSITIES ARE DOING ABOUT IT 2 (2005), available at https:// www.ncjrs.gov/pdffilesl/nij/205521.pdf; Lexie Kuznick & Megan Ryan, Introduction to Changing Social Norms? Title IX and Legal Activism: Comments from the Spring 2007 Harvard Jour- nal of Law & Gender Conference, 31 HARV.J.L. & GENDER 367, 374 (2008). 1613

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