A 2014 communication reaffirmed the change.
The Department of Education’s actions were part of a larger effort to decrease sexual assault on college campuses by threatening institutions with the loss of federal funds if they didn’t making sweeping changes to their disciplinary procedures.
Most institutions complied. But critics say that students are now being denied due process. After Harvard University revised its sexual-misconduct policy, for example, numerous members of its law faculty signed a protest letter declaring that “we find the new sexual harassment policy inconsistent with many of the most basic principles we teach. We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom.”
Another group of law professors from numerous institutions of higher education co-signed an open letter objecting that the Office of Civil Rights “unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment”––a procedural objection––“thereby compelling institutions to choose between fundamental fairness for students and their continued acceptance of federal funding.”
...relentless pressure on institutions to respond aggressively to sexual assault allegations has undermined the neutrality of many campus investigators and adjudicators by forcing them to consider the broader financial impact of their actions. In an effort to preclude a costly Title IX investigation, some institutions interrogate accused students before informing them of the specific conduct code they are alleged to have violated and many deny them access to witnesses or potentially exculpatory evidence. In the aftermath, innocent suspended and expelled students have become mired “in academic and professional
limbo,” impairing or destroying their access to a college education, thereby relegating them to a lifetime of diminished income and social stigmatization as sexual offenders.
Some students who were found guilty in campus proceedings sued their colleges, claiming that their due process rights were violated, and won victories in court.
The complaint in Doe v. Lhamon states that the plaintiff, John Doe, had a sexual encounter with Jane Roe on August 23, 2013. A year-and-a-half later, on March 6, 2015, Roe alleged misconduct, saying that due to alcohol consumption she could not consent to sexual activity. Doe responded that on the night in question, Roe did not appear to be intoxicated let alone incapacitated. UVA investigated the matter.
Previously, the university had used a “clear and convincing” standard. According to an old student handbook, that standard “means that the claim is highly probable and has produced a firm belief or conviction that the allegations in question are true.” But due to changes undertaken at the behest of the Department of Education, the Doe case was decided on the “preponderance of the evidence.”