Was Justice Gorsuch thinking about Title IX in EMD Sales?

If you skipped EMD Sales v. Carrera, I won’t blame you. The Supreme Court unanimously reversed the Fourth Circuit about the correct evidentiary standards in a Fair Labor Standards Act case. Boring, right? Maybe. But I think this case may be about something more. At issue was how an employer had to show if an employee was exempt from overtime and minimum wage laws. Did the employer need to make his case that the employee was exempt with a preponderance of the evidence? Or did he need to meet a higher burden, clear and convincing evidence?

There has been a long-running debate about whether the appropriate burden in Title IX is “preponderance” or “clear and convincing.” In many cases, especially those involving allegations of sexual assault, the evidence boils down to a he-said, she-said. Universities can often impose sanctions based on a preponderance, but cannot punish students if they need to provide clear and convincing evidence.

Justice Kavanaugh’s majority found that for the FLSA, the appropriate standard is a “preponderance.” Kavanaugh expressly drew an analogy between FLSA and Title VII.

Most relevant here, the Court has applied a preponderance standard in Title VII employment-discrimination cases. See Price Waterhouse, 490 U. S., at 253–254 (plurality opinion); id., at 260 (White, J., concurring in judgment); id., at 261 (O’Connor, J., concurring in judgment). . . . Third, this is not a case where the government otherwise seeks to take “unusual coercive action” against an individual. Price Waterhouse, 490 U. S., at 253 (plurality opinion). Cases under the Fair Labor Standards Act are more akin to the Title VII cases where the Court has held that a preponderance standard applies. If clear and convincing evidence is not required in Title VII cases, it is hard to see why it would be required in Fair LaborStandards Act cases.

If the standard for Title VII is preponderance, would the standard for Title IX also be preponderance? 

Justice Gorsuch wrote a brief concurring, joined by Justice Thomas:

Sometimes, the Constitution or Congress provides a particular standard of proof. See ante, at 4–5. If not, courts must find one. As in other contexts, they do so by examining the legal backdrop against which Congress has legislated. See, e.g., Dixon v. United States, 548 U. S. 1, 17 (2006); cf. Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991) (“Congress is understood to legislate against a background of common-law adjudicatory principles”). In civil cases, those background legal principles typically require proof by a preponderance of the evidence. See ante, at 4. Occasionally, though, the default “common-law rule” provides instead for a “heightened standard of proof.” Microsoft Corp. v. i4i L. P., 564 U. S. 91, 116 (2011) (THOMAS, J., concurring in judgment). Either way, courts apply the default standard unless Congress alters it or the Constitution forbids it. See, e.g., Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U. S. 545, 557–558 (2014). To do otherwise would be to “choose sides in a policy debate,” ante, at 7, rather than to declare the law as our judicial duty requires. Our decision today is consistent with this understanding, and I am pleased to join it.

I suspect Gorsuch and Thomas are writing about Title IX. They likely think the Due Process Clause requires the higher burden of proof. Alternatively, a “common-law rule” for a “heightened standard of proof” ought to apply to these disciplinary proceedings.

Given the outcome of the election, and recent litigation, the Biden Title IX regulations are not long for this world. The Trump Administration will likely revert back to “clear and convincing” evidence. And since there is no longer the benefit of Chevron deference, the Court will have to decide what is the best reading of Title. Given the longstanding adherence to “clear and convincing” evidence, and that “preponderance” is a more recent manifestation, I suspect the Trump rules would pass muster.

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