Some campuses had used a "clear and convincing" standard, which requires about 75 percent certainty, he says. A few, such as Stanford, had even required "beyond a reasonable doubt," similar to a criminal trial.
Shibley cites the case of a University of North Dakota student who was found guilty of sexual assault in a campus procedure using the preponderance standard. The university suspended him. Meanwhile, the police had decided to charge his accuser with filing a false claim, and she left to dodge the arrest warrant, Shibley says.
Russlynn Ali, head of OCR, denies that the standard is unfair: "We are firmly committed to respecting students' due process rights and believe wholeheartedly that the requirements in the 'Dear Colleague' [letter] are entirely consistent with those rights."
About 80 percent of colleges were already using the preponderance standard, Ms. Ali estimates. For Title IX enforcement, she adds, it's a longstanding practice.
"To go with a standard higher than preponderance of the evidence would tilt the scales inappropriately in favor of the accused individual," says Saundra Schuster, who trains campus Title IX coordinators as a partner at the National Center for Higher Education Risk Management in Malvern, Pa.
The preponderance standard works well at the University of Tennessee at Chattanooga, says Sara Peters, director of the Women's Center there. Rulings have come down at times in favor of the accuser, and at other times in favor of the accused. "If you have a judicial board that is trained to look at the evidence and really think it through, then it should work as intended," she says.