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Abstract

This Article examines the constitutional due process impact of the vastly opposite and conflicting standards of review in Title IX sexual assault investigations. Thousands of unionized public employees are subject to the terms and conditions of a public university collective bargaining agreement, which requires a heightened standard of “clear and convincing evidence” to discipline employees. At the same time-perhaps unknowingly-the employee is also held to the strict federally mandated standard of a “preponderance of the evidence,” which has a lower standard of review. In short, under the same facts and within the same Title IX investigation, the employee is subject to two conflicting legal standards. The circumstances and facts revealed that many Title IX sexual assault investigations can lead to: employee discipline, suspension, termination or even a private right of action. With this valuable right at stake for unionized public university employees, the legal conflict surrounding standards of review has manifested as one of the nation's most pressing social, political, and legal matters of this decade.

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