The Campus SaVE Act would solidify victims' right to appeal unsatisfying verdicts. But language that would have written the preponderance standard into statute, giving it stronger legal footing, was dropped. Even if the bill becomes law, preponderance would remain only the Obama administration's interpretation of Title IX, which colleges could challenge in court.
With access to federal funding at stake, few would likely cross the administration's view. But some appear willing to push the preponderance standard requirement. Princeton University will continue to run campus disciplinary proceedings using a "clear and persuasive" standard, while conducting a parallel process in sexual assault cases using the preponderance standard to determine where there's been a Title IX violation.
In theory, Princeton could clear an accused student of violating campus rules, but still conclude a Title IX violation took place, triggering its requirement to provide support for the victim (while the OCR guidance says colleges may have to take steps to ensure victims are separated from their assailants in classes and dorms, it doesn't tell colleges how to punish).
Murphy, the Boston attorney, and some other experts criticize that approach and doubt OCR would tolerate it. But Ali, the head of OCR, indicated she wasn't necessarily opposed to a two-tracked system. She declined to address any particular school, but said OCR was talking with colleges about their concerns and would study them "case by case" — suggesting colleges may have more flexibility than they realize.
Princeton Provost Christopher Eisgruber said the policy is the best way to balance protecting both the Title IX and due process rights of students.
"There are in these kinds of proceedings two different kinds of mistakes that can be made," he said. "You have to protect against both of them."
AP News Researcher Rhonda Shafner contributed to this report. Follow Justin Pope at http://www.twitter.com/JustinPopeAP
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