Affirmative Consent Standards Under FIRE

The key factor in many Title IX complaints is whether or not consent was given to engage in sexual activity. As Title IX does not provide a definition of consent, colleges and universities are tasked with defining this term for themselves. Over the last couple of years, many schools have changed the definition of “consent” in their Title IX policies to an “affirmative consent” (or “yes means yes”) standard. In response to this growing trend, the Foundation for Individual Rights in Education (FIRE) sent a letter to the U.S. Department of Education Office for Civil Rights (OCR) last month, demanding that the agency “clearly and publicly censure” affirmative consent standards that require “students engaging in sexual activity to be able to prove unambiguous and demonstrable expressions of consent for any sexual act performed.” Read a copy of FIRE’s letter HERE. According to FIRE, affirmative consent standards clearly violate the due process and fundamental fairness requirements of Title IX by failing give students notice of what is required of them, and placing “the burden of proof on accused students to demonstrate their innocence.”

Client Tip: FIRE raises legitimate concerns about the legality and morality of affirmative consent standards. While it is questionable that OCR will renounce affirmative consent standards at this time, colleges should be cautious about implementing such policies as they are often overly broad, vague, and place unrealistic expectations on students engaging in sexual activity.  

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Approved Investigators of Sexual Misconduct

Bowditch attorneys are regularly retained by institutions of higher education to conduct sexual misconduct investigations. Our attorneys are approved investigators of sexual misconduct and frequently hired by United Educators. We also provide consulting services and training to colleges, universities and secondary schools on a wide variety of issues relating to preventing, investigating and responding to sexual misconduct.

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