U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections

Category: Due Process, Free Speech

In April 2011, the United States Department of Education’s Office for Civil Rights (OCR) established new mandates requiring colleges and universities receiving federal funding to dramatically reduce students’ due process rights. Under the new regulations, announced in a letter from Assistant Secretary for Civil Rights Russlynn Ali, colleges and universities must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. The regulations further require that if a university judicial process allows the accused student to appeal a verdict, it must allow the accusing student the right to appeal as well, resulting in a type of “double jeopardy” for the accused. Additionally, OCR’s letter fails to recognize that truly harassing conduct (as defined by the law) is distinct from protected speech. Institutions that do not comply with OCR’s new regulations face federal investigation and the loss of federal funding. FIRE has written OCR expressing deep concern about the new requirements but has yet to receive a response.
























    • The Obama Administration’s War on Women

      January 31, 2014

      by Ben Cohen at The American Thinker The Foundation for Individual Rights in Education, along with Minding the Campus, wrote extensively about the “Dear Colleague letter” sent by Russlyn Ali, the Department of Education’s assistant secretary for civil rights, to America’s various educational institutions. The letter threatened loss of funding if these institutions did not comply with their title IX obligations, which would be title IX of the 1972 educational amendments. Educational institutions which receive federal funds may not discriminate on the basis of sex, and an environment where people are frequently the targets of sexual harassment is considered a hostile one, and therefore discriminatory […]

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    • False Sex-Assault Convictions Easier Under Obama

      May 10, 2012

      How many other Caleb Warners are out there? That’s the focus of a new letter to the Obama administration that pleads with officials to remove a threat to students the Department of Education created a year ago with directions that on-campus sexual assault cases be determined on a low-level “preponderance of evidence” standard of proof. Warner was found guilty of sexual assault by a campus court at the University of North Dakota in Grand Forks in 2010 despite the facts established at the time by city police. Officers not only refused to charge him but alleged his accuser made a […]

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    • On campus, debate over civil rights and rape

      April 21, 2012

       For months after Kristina Ponischil was raped at a party in her off-campus apartment, her life at Western Washington University was hell. Police wouldn’t act, as often happens in college towns with “he said, she said” accounts of alcohol-influenced student encounters behind closed doors. Despite a restraining order, she kept running into her assailant on campus, prompting panic attacks. Once, the man who’d raped her brushed up against Ponischil in the bookstore, then smirked. “I was just constantly worried that I would run into him again,” Ponischil said. But if the criminal justice system let Ponischil down, Western Washington did […]

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    • For colleges, rape cases a legal minefield

      April 21, 2012

      A closed- door encounter between two college acquaintances. Both have been drinking. One says she was raped; the other insists it was consensual. There are no other witnesses. It’s a common scenario in college sexual assault cases, and a potential nightmare to resolve. But under the 40-year-old federal gender equity law Title IX — and guidance handed down last year by the Obama administration on how to apply it — colleges can’t just turn such cases over to criminal prosecutors, who often won’t touch them anyway. Instead, they must investigate, and in campus proceedings do their best to balance the accused’s due […]

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    • Sen. Leahy removes potential threat to due process from Violence Against Women Act

      November 15, 2011

      Campus activists are cheering a decision by Vermont Democratic Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, to do away with a portion of the Violence Against Women Act (VAWA) reauthorization that would have required college students accused of sex-based infractions be tried under a lowered standard of proof. “Because of the feedback he has received concerning this proposal, he does not plan to include it in the bill he later will introduce,” explained Senate Judiciary Committee spokeswoman Erica Chabot in a statement. The portion of the bill in question would have codified into law new regulations imposed on colleges […]

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    • Leahy scraps provision in anti-domestic violence bill following complaints

      November 11, 2011

      WASHINGTON – Sen. Patrick Leahy will scrap a provision in draft legislation reauthorizing the Violence Against Women Act following complaints that it would compromise due-process protections for college students accused of sexual harassment or violence. “Because of the feedback he has received concerning this proposal, he does not plan to include it in the bill he later will introduce,” Erica Chabot, spokeswoman for the Senate Judiciary Committee, said this week. Leahy, D-Vt., is the committee’s chairman. His draft measure would have required federally funded colleges and universities to apply a lower standard of proof — a “preponderance” of evidence rather […]

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    • The Politics of Campus Sexual Assault

      November 6, 2011

      Nearly two years ago, in February 2010, University of North Dakota student Caleb Warner was thrown out of school with a three-year ban on reapplying after a campus disciplinary panel found he had violated criminal laws by sexually assaulting a fellow student. In fact, Warner was never actually charged with a crime in the justice system — but his accuser, Jessica Murray, was. In May of the same year, the Grand Forks, North Dakota police department formally charged her with filling a false report after concluding its investigation. (Murray now resides in California and has never appeared in court to […]

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    • Senate Bill Would Further Undermine Due Process on Campus

      October 24, 2011

      Historically, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As Nicholas Trott Long noted in 1985 in the Journal of College and University Law, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (Long, The Standard of Proof in Student Disciplinary Cases, 12 J.C. & U.L. 71 (1985)). But in recent years, this due process safeguard has come under attack, most prominently in a legally-flawed April 4, 2011 “Dear Colleague” letter from the head of […]

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    • Feds warn colleges: handle sexual assault reports properly

      September 2, 2011

      The Obama administration is holding colleges’ feet to the fire when it comes to how they handle reports of sexual violence and harassment. The tougher stance comes after federal officials saw problems at a number of schools that led some victims of sexual violence to feel revictimized by campus policies and procedures. The Obama approach also follows years of perceived inattention to the issue by the Bush administration. With the school year under way at many colleges, at least one student – at the College of New Jersey – has already told authorities she was the victim of a sexual […]

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    • Editorial: OCR guilty of lowering conviction standards

      September 1, 2011

      Attention all college students and parents: The U.S. Department of Education Office of Civil Rights recently changed the standards for how all claims of sexual assault on campus are to be resolved. According to the OCR, colleges and universities must lower their evidentiary standards to make prosecutions easier and convictions more likely. So now instead of needing “clear and convincing” evidence of guilt to convict the accused, colleges must adopt a “preponderance of the evidence” standard, or risk being sued by the federal government. The goal here is increase the number of students convicted for such alleged conduct and thereby, […]

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    • Standing Up for Due Process on Campus = “Sticking Up for Penises Everywhere?

      August 30, 2011

      When precisely did we decide that we want the federal government in our sex lives? At the end of last academic year, the Campus SaVE Act was introduced in both houses of Congress. One strange mandate in it is that almost all colleges in America must teach students about “the elements of healthy relationships,” like some strange, federally mandated “birds and bees” talk. College students are adults, right? Didn’t they have sex ed in middle school and high school? The more serious issue in the Campus SaVE Act is that it demands a low “preponderance of the evidence” standard in […]

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    • On Sexual Harassment and Title IX

      August 30, 2011

      Back in April, the U.S. Department of Education’s Office of Civil Rights (OCR) issued a letter ordering colleges and universities to get more aggressive about investigating and prosecuting alleged incidents of sexual assault and harassment. But while the 18-page missive began with the cordial salutation “Dear Colleague,” it was anything but a casual communication sent from one friend to another. Backed by the full force of the law, this detailed directive set new standards for the resolution of sexual assault claims at colleges and universities. It was formulated, moreover, without hearings, comment periods or other mechanisms aimed at avoiding unintended […]

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    • American Association of University Professors expresses concern over Dept. of Education’s new mandates

      August 18, 2011

      The American Association of University Professors (AAUP) Thursday expressed concern to the Department of Education’s Office for Civil Rights over the sexual harassment guidance the department issued to colleges in April. In a letter to Russlynn Ali, assistant secretary for civil rights at the Department of Education, AAUP explained that while the organization has been pleased with the government’s push to reduce gender inequality in America’s educational institutions, they have concerns about potential overreach by the government. According to the AAUP, the April “Dear Colleague Letter,” which detailed guidance for colleges on how to deal with sexual harassment contained two […]

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    • Rape should be tough to prove

      August 14, 2011

      Cynthia Bell is a rising senior at Seton Hall University and a former intern at the Foundation for Individual Rights in Education For better or for worse, the Casey Anthony trial is over and she has been released from jail. The crux of the verdict was the lack of evidence to convict Anthony. For a criminal trial, the standard of evidence is “beyond a reasonable doubt.” Anthony could have received the death penalty if convicted, so it makes sense that there had to be no reasonable question in a juror’s mind that she was guilty. Having lied and refused to […]

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    • Kudos to the AAUP

      August 4, 2011

      As someone who has criticized the AAUP on a number of occasions for diluting the definition of academic freedom, I want to note three recent cases in which the AAUP has taken commendable positions. First, the AAUP, like the Foundation for Individual Rights in Education, has opposed an action by the U.S. Department of Education’s Office for Civil Rights that would lower due-process protections in adjudicating student allegations of sexual harassment or sexual violence. Second and third, the AAUP has issued a report criticizing Louisiana State University for its 2009 firing of Ivor van Heerden and its 2010 treatment of […]

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    • Opposition mounts to federal govt’s new university sexual harassment rules

      July 30, 2011

      A large organization of university professors voiced its opposition yesterday to a new Department of Education policy lowering the standard of guilt for sexual misconduct cases on university campuses. The American Association of University Professors sent a letter to Education Department’s Office of Civil Rights objecting to the office’s new standards, which the office rolled out in April. The Office of Civil Rights now requires all universities which receive federal funding to use a “preponderance of evidence” standard in grievance procedures involving sexual misconduct, rather than the more strict “clear and convincing” evidence standard. In an official letter, the OCR […]

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    • The feds’ mad assault on campus sex

      July 19, 2011

      New York Post On campus today, if you hook up with your date (or even your wife) after she’s had a few drinks, you’re often automatically guilty of sexual assault. In the real world, drinking doesn’t necessarily destroy your freedom of choice. Many US colleges and universities, however, believe it renders you unable to consent to sex. At Stanford University, “intoxicated” students can’t consent to sexual contact. At Princeton, you need only be “under the influence” of alcohol to lose your ability to consent — which surely makes many a student both the victim and perpetrator of sexual assault. The […]

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    • Yes Means Yes–Except on Campus

      July 15, 2011

      by Harvey Silverglate in The Wall Street Journal For a glimpse into the treacherous territory of sexual relationships on college campuses, consider the case of Caleb Warner. On Jan. 27, 2010, Mr. Warner learned he was accused of sexual assault by another student at the University of North Dakota. Mr. Warner insisted that the episode, which occurred the month prior, was entirely consensual. No matter to the university: He was charged with violating the student code and suspended for three years. Three months later, state police lodged criminal charges against his accuser for filing a false police report. A warrant for […]

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    • Feds crack down on campus flirting and sex jokes

      June 21, 2011

      When I was growing up it was widely believed that colleges and universities were the part of our society with the widest scope for free expression and free speech. In the conformist America of the 1950s, the thinking ran, few people dared to say anything that went beyond a broad consensus. But on campus anyone could say anything he liked. Today we live in an America with enormous cultural variety in which very few things are considered universally verboten. But on campus it’s different. There saying something considerably milder than some of the double entrendres you heard in cable news […]

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    • The Department of Education, Yale, And the New Threat to Free Speech on Campus

      June 15, 2011

      Yale University’s decision last month to punish a fraternity that made pledges chant offensive slogans was heralded by some as a blow against sexual harassment in the college setting. But it may be the beginning of a new wave of campus censorship of politically incorrect speech. The reason lies in the relationship between the Department of Education’s Office for Civil Rights (OCR), which is in charge of enforcing federal antidiscrimination laws on campus, and the ever-growing ranks of campus bureaucracy. On April 4, 2011, OCR issued a 19-page letter laying out detailed procedures every university in the country must follow in cases involving […]

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    • The feds’ campus Keystone Kops

      May 31, 2011

      by Jeffrey Hadden The Detroit News   The Office of Civil Rights of the U.S. Department of Education has launched an attack on the civil rights of college students. The attack comes in the guise of a letter to university presidents spelling out their responsibilities in dealing with sex discrimination, sexual harassment, and even violent sexual assault on campus. At the same time that it issued the letter, the Education Department’s Office of Civil Rights announced an investigation into whether Yale University maintains a sexually-hostile atmosphere on campus. One of the triggering incidents seems to be the actions of some […]

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    • Yale, the Department of Education, and the looming free speech crisis

      May 24, 2011

      Yale University’s recent decision to punish a fraternity that made pledges chant offensive slogans was heralded by some as a blow against sexual harassment. But it may be the beginning of a new wave of campus censorship of politically incorrect speech. The reason lies in the relationship between the Department of Education’s Office for Civil Rights (OCR), which is in charge of policing the enforcement of antidiscrimination laws on campus, and the ever-growing ranks of campus bureaucracy. On April 4, 2011, OCR issued a 19-page letter laying out detailed procedures every university in the country must follow in cases involving […]

      » Read More

    • Falsely accused teachers and students will be harmed by new Education Department policy

      May 16, 2011

      The Washington Post had a sad story on May 14 about a school teacher falsely accused of sexual misconduct by a student with a vendetta against him and a history of bullying.  A jury acquitted Fairfax teacher Sean Lanigan after just 47 minutes of deliberations, expressing amazement at the weakness of the charges against him.  But he still doesn’t have his old job back. If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing, and may very […]

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    • Dept of Education orders universities to lower burden of proof in sex crime cases

      May 6, 2011

      The Foundation for Individual Rights in Education (FIRE) is going to bat against the Department of Education’s Office for Civil Rights (OCR) over what they see as infringements on college students’ due process and free speech rights. In a “Dear Colleague” letter sent to colleges and universities in April, Assistant Secretary for Civil Rights Russlynn Ali announced new federal regulations publicly funded schools must employ to address allegations of sexual harassment and sexual violence. The new standards most notably lower the burden of proof to prosecute. “[I]n order for a school’s grievance procedures to be consistent with Title IX standards, […]

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    • UVa plans to revise sexual misconduct policy

      May 6, 2011

      The University of Virginia plans to revise its sexual misconduct policy to broaden the scope of offenses and to lower the standard of evidence necessary to find a student guilty. Under the policy, sexual misconduct would become the umbrella term to include any unwelcome sexual behavior. The revision more precisely defines what constitutes assault, harassment and exploitation, including offenses such as cyberstalking, the recording of sexual images and the knowing transmission of a sexually transmitted infection. The policy also would eliminate the geographic limit on UVa’s jurisdiction, which under current policy covers university property or a student or employee residence […]

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    • UMass Amherst Tells Court That ‘Dear Colleague’ Letter Is Not Binding Law

      December 4, 2014

      For over three years now, FIRE has been arguing that the Department of Education’s Office for Civil Rights’ (OCR’s) April 4, 2011 “Dear Colleague” letter (DCL) violated federal law because it did not go through the requisite “notice and comment” process and is thus invalid. OCR is an administrative agency of the federal government. It is therefore constrained by the Administrative Procedure Act (APA). If a proposed agency rule would impose new obligations on the public, the APA requires the agency to subject those proposed rules to notice and comment before they may be adopted. OCR skipped this process altogether […]

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    • ‘New York Times’ Takes a More Thorough Look at Mishandling of Campus Rape

      November 17, 2014

      In past months, FIRE has criticized The New York Times for failing to adequately consider the repercussions for students’ due process rights when covering the steps that institutions of higher education, lawmakers, and the White House are taking to address the problem of campus sexual assault. Yesterday, however, The New York Times published an op-ed by Yale University law professor Jed Rubenfeld which offered a more complete look at the ways in which colleges and universities are failing on this issue, writing that colleges “are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault […]

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    • Princeton Adopts ‘Preponderance’ Standard, Reaches Agreement with Department of Education

      November 10, 2014

      The Department of Education’s Office for Civil Rights (OCR) announced last week that it has entered into a resolution agreement with Princeton University after finding that the institution was in violation of Title IX. OCR’s demands include the use of the “preponderance of the evidence” standard of proof in adjudicating sexual misconduct cases—meaning that students accused of sexual assault or harassment must be found guilty if the fact-finders determine it is more likely than not that he or she committed the violation. As FIRE has noted on The Torch before, until recently, Princeton was one of just a small number […]

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    • Reversing Course, Princeton’s Proposed Sexual Assault Policy Chips Away at Due Process

      September 23, 2014

      Next week, the Council of the Princeton University Community (CPUC) will decide whether to adopt a proposed sexual assault policy already approved by Princeton faculty members that would, among other things, change the standard of proof in sexual misconduct cases, weakening due process protections for accused students. Currently, a student charged with sexual misconduct at Princeton will be found responsible only if there is “clear and persuasive evidence” of his or her guilt. However, the new policy would require only that it be more likely than not that the accused student is guilty of sexual misconduct. An overwhelming majority of […]

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    • Due Process in the News: ‘Washington Post’ Highlights Accused Students’ Concerns

      August 21, 2014

      Yesterday’s issue of The Washington Post included a comprehensive and even-handed article about the due process concerns being raised by an increasing number of students accused of sexual assault within university judicial systems.

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    • Samantha Harris Addresses Campus Sexual Assault on Al Jazeera America

      August 19, 2014

      FIRE’s Director of Policy Research Samantha Harris appeared on Al Jazeera America’s “The Week Ahead” segment on Sunday night to talk with Thomas Drayton and victims’ rights advocate Sabrina Kowaleski about what colleges and universities can and should be doing to address the problem of sexual assault on campus.

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    • Connecticut Campus Sexual Assault Bill Further Undermines Due Process

      August 18, 2014

      In recent months, lawmakers in Congress and in states across the country have proposed legislation addressing sexual assault on college campuses. Here on The Torch, we’ve written about the federal efforts as well as California’s troubling affirmative consent bill, SB 967.

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    • California SB 967 Supporters Ignore Due Process Concerns

      August 15, 2014

      Back in February, FIRE expressed concerns about California’s Senate Bill 967, which attempts to address the issue of campus sexual assault by requiring colleges receiving state-funded student aid to implement an “affirmative consent” standard in their sexual assault policies. Yesterday, KPBS in San Diego shared FIRE Legislative and Policy Director Joe Cohn’s comments about why the bill will endanger due process for students accused of sexual assault, as well as statements from supporters of the bill that are worth discussing.

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    • ‘New York Times’ Misses Opportunity to Report on Campus Due Process Violations

      July 7, 2014

      Last week, the New York Times Editorial Board addressed the issue of campus sexual assault. Unfortunately, the Board missed an opportunity to address many serious concerns held by FIRE and others about university policies and practices that threaten the due process rights of students accused of sexual misconduct.

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    • Senators Ask Key Questions at Hearing on Campus Sexual Assault

      June 30, 2014

      Last Thursday, the Senate Committee on Health, Education, Labor, and Pensions (HELP) held a hearing on colleges’ and universities’ handling of sexual assault cases. As one might have predicted from the tough questions raised at Senator McCaskill’s (D-MO) roundtable discussions on the topic and the recent media coverage of how universities are struggling with federal guidance, the HELP Committee hearing got heated at times.

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    • United Educators’ Statistics Show Strong Claims from Accused Students

      June 23, 2014

      EduRisk Solutions, a risk management resource provided by United Educators (UE), an insurance company that serves colleges, universities, and other educational institutions across the country, released a Risk Research Bulletin in December 2011 that has resurfaced in light of the ongoing controversies surrounding colleges’ and universities’ handling of sexual misconduct cases. The bulletin describes how the circumstances surrounding campus sexual assault allegations create a “perfect storm” resulting in scores of claims and millions of dollars paid out as a result of institutions mistreating accusers, accused students, or both.

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    • Brown Student Tells Story of Sexual Assault Accusation in ‘Daily Beast’

      June 12, 2014

      As college administrators, state and federal lawmakers, the White House, and the Department of Education’s Office for Civil Rights (OCR) take steps to combat sexual assault on college and university campuses, it is critically important to ensure that attempts to keep students safe do not exacerbate the already serious threats to due process that exist for students accused of sexual misconduct. Consideration of the legal problems presented by the use of the low “preponderance of the evidence” (50.01% certainty) standard of proof and by the lack of procedural safeguards in campus hearings is necessary—but it doesn’t tell the full story. Brown University student Daniel Kopin’s story of being accused of rape, published in The Daily Beast on Sunday, serves as a powerful reminder that the dangers posed by unfair hearings are not hypothetical.

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    • A Closer Look at Senator McCaskill’s Second Roundtable on Campus Sexual Assault

      June 4, 2014

      On Monday, Senator Claire McCaskill held the second of a series of three roundtables discussing sexual assault on campus in Washington, D.C. Joined by Senators Jon Tester and Richard Blumenthal, the discussion centered on Title IX and featured what Senator McCaskill deemed a “diverse group of stakeholders,” including representatives from victims’ rights advocacy groups like Know Your IX, college administrators involved in Title IX compliance, and Acting Assistant Attorney General for Civil Rights Jocelyn Samuels from the Department of Justice.

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    • FIRE Responds to White House Task Force’s First Report on Campus Sexual Assault

      April 29, 2014

      Three months after its creation, the White House Task Force to Protect Students from Sexual Assault issued its first report today. Titled “Not Alone” and accompanied by a new website, NotAlone.gov, the report announces new recommended practices for colleges and universities nationwide, including a template for “campus climate surveys,” a model sexual misconduct policy, and a sample confidentiality policy. The report is accompanied by the issuance of a new guidance document regarding Title IX from the Department of Education’s Office for Civil Rights. Taken together, the Task Force’s recommendations double down on a broken campus judicial system and raise troubling new concerns about the impartiality and fundamental fairness of campus proceedings.

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    • Dept. of Education Rulemaking Session Ends on Positive Note for Student Due Process Rights

      April 2, 2014

      Yesterday, the last of three “negotiated rulemaking” sessions over new requirements for campus safety rules imposed by last year’s Violence Against Women Act reauthorization closed with good news for student rights.

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    • ‘Bait and Switch’ at Dept. of Education’s Negotiated Rulemaking Session

      February 24, 2014

      Today, the Department of Education began the second of three sessions of negotiated rulemaking on changes to federal campus crime reporting requirements. Unfortunately, negotiators are attempting to advance regulatory measures specifically rejected by lawmakers in the 2013 reauthorization of the Violence Against Women Act (VAWA), including a requirement that campus judiciaries employ our nation’s lowest evidentiary standard in sexual harassment and sexual assault hearings.

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    • Revisiting the ‘Preponderance’ Debate

      June 11, 2013

      by Eugene Volokh The Volokh Conspiracy   Joe Cohn of the Foundation for Individual Rights in Education — a group which I very much respect — passed along this response to my post on whether universities should apply the “preponderance of the evidence” standard in deciding whether to expel or otherwise discipline students accused of sexual assault: Professor Volokh recently authored a post here on The Volokh Conspiracy parting company with my organization, the nonprofit, nonpartisanFoundation for Individual Rights in Education, with regard to our opposition to the Department of Education’s April 4, 2011, “Dear Colleague” letter(DCL), which requires colleges and universities that accept federal […]

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    • Stephen Henrick in Law Review on Rights of Students Accused of Sexual Assault

      May 17, 2013

      In an article for the Northern Kentucky Law Review titled “A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses” (PDF), former FIRE legal intern Stephen Henrick reviews the ways in which university adjudications of sexual assault are deeply flawed. Ultimately, Stephen comes to this conclusion:  Quite simply, the law must recognize that a university (like any institution) has limits. Society must assign adjudication of sexual assault to civil and criminal court systems to ensure justice for all concerned. Since the publication of the Departments of Justice and Education’s “blueprint” letter (PDF) in the University of Montana case […]

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    • Department of Education’s Latest ‘Dear Colleague’ Letter on Title IX Retaliation is Puzzling

      April 29, 2013

      The Office for Civil Rights (OCR) of the United States Department of Education (Department) periodically issues policy guidance in the form of a “Dear Colleague” letter (DCL). As regular readers of The Torch know, the April 4, 2011, DCL on sexual harassment—including sexual violence—presented serious threats to student and faculty rights. With that letter, OCR issued new requirements, including a mandate to use a “preponderance of the evidence” standard to determine if someone was guilty of sexual misconduct. A full explanation of the problems with the April 2011 DCL can be found here and here. While the April 2011 DCL was a bombshell, […]

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    • Walter Russell Mead Emphasizes the Importance of the Presumption of Innocence

      April 25, 2013

      Writing for his blog, Via Meadia, Walter Russell Mead frankly addresses the problem of adjudicating sexual misconduct claims on college campuses, where due process rights are being set aside. As FIRE has reported in depth, the U.S. Department of Education’s Office for Civil Rights published a “Dear Colleague” letter on April 4, 2011 that mandated that universities use a “preponderance of the evidence” standard in Title IX cases, including sexual assault claims. “In other words,” Mead explains, “a student must, in the judgment of a campus tribunal, ‘more likely than not’ have committed the assault.” In addition, colleges and universities often fail […]

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    • Lewis and Shaw: Schools Must Preserve Rights in Sexual Assault Cases

      April 18, 2013

      Balancing the rights of the accused and the alleged victim in sexual assault cases is a delicate matter. Harry Lewis, former dean of Harvard College, and Jane Shaw, president of the Pope Center for Higher Education Policy, wrote in Forbes.com yesterday on the ways in which college judiciaries exacerbate this problem. The Department of Education’s Office for Civil Rights’ April 4, 2011 directive that colleges use the “preponderance of the evidence” standard of proof for determining guilt in sexual misconduct cases has resulted in many of those cases boiling down to nearly arbitrary judgments in “he said, she said” cases. […]

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    • House Votes to Reauthorize VAWA; How Will It Impact Student Rights?

      February 28, 2013

      Nearly a month after the U.S. Senate did the same, the House of Representatives voted today to reauthorize the Violence Against Women Act (VAWA). Although FIRE takes no position on a vast majority of the domestic violence bill, we have been monitoring aspects of the legislation that affect college and university student rights. As various iterations of VAWA made their way through Congress, three distinct threats to student rights were included in some of those versions. The originally proposed version, for example, mandated that campus judiciaries decide sexual misconduct cases under our judiciary’s lowest burden of proof, the “preponderance of […]

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    • New AAUP Statement on Campus Sexual Assault: ‘Clear and Convincing Evidence’ Standard ‘Necessary’ to Protect Due Process, Shared Governance

      February 14, 2013

      Yesterday, the American Association of University Professors (AAUP) issued a new statement regarding campus sexual assault. Among other recommendations, the AAUP’s statement recommends that campus judicial proceedings employ the “clear and convincing evidence” evidentiary standard in adjudicating sexual assault cases. Titled Campus Sexual Assault: Suggested Policies and Procedures (PDF), the statement was approved last October by the AAUP’s Committee on Women in the Academic Profession and adopted in November by the AAUP Council. Noting that the AAUP has long maintained that “the freedom to teach and to learn is inseparable from the maintenance of a safe and hospitable learning environment,” […]

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    • Joe Cohn in ‘LGBTQ Nation’ On Tyler Clementi Higher Education Anti-Harassment Act

      February 6, 2013

      On Monday, Senator Frank Lautenberg and Congressman Rush Holt, both of New Jersey, re-introduced the Tyler Clementi Higher Education Anti-Harassment Act (S. 216 in the Senate and H.R. 482 in the House of Representatives), legislation that would require colleges and universities receiving federal aid to prohibit harassment based on certain personal characteristics, including sexual orientation and gender identity. FIRE takes no position on what should be explicitly listed as protected classes under federal anti-discrimination laws. Nevertheless, we do have some concerns about these bills, assuming they are the same as prior versions (the text of the newly introduced bills are […]

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    • Controversial Head of Dept. of Ed’s Office for Civil Rights Steps Down

      November 30, 2012

      WASHINGTON, November 30, 2012—Russlynn Ali, assistant secretary for civil rights at the U.S. Department of Education, reportedly announced yesterday in a conference call that she would be stepping down from the post as of today. Under her tenure, the Department’s Office for Civil Rights (OCR) has failed for more than a year and a half to answer letters from the Foundation for Individual Rights in Education (FIRE) and the American Association of University Professors (AAUP) about OCR’s controversial 2011 mandate that colleges receiving federal funding sharply reduce crucial due process protections for students accused of sexual harassment or misconduct.  “While […]

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    • New FIRE Op-ed in ‘The Stanford Daily’

      November 2, 2012

      FIRE President Greg Lukianoff and Legislative & Policy Director Joseph Cohn have a new op-ed in The Stanford Daily today, calling on the school to more seriously consider its current standards for adjudicating sexual misconduct on campus. As Greg and Joe report, Stanford has adopted a “temporary ‘Alternate Review Process’ (ARP) that reduces the standard of evidence from ‘beyond a reasonable doubt’ to the lower ‘preponderance of the evidence.’”  While responding seriously and appropriately to allegations of sexual assault is critical, Greg and Joe point out that “[t]here need be no tension between a university’s moral and legal obligation to […]

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    • Responding in Full to ‘Preponderance of the Evidence’ Advocates

      October 18, 2012

      On October 1, I penned an article for The Chronicle of Higher Education arguing that the Department of Education’s Office for Civil Rights’ (OCR’s) insistence that colleges and universities use the “preponderance of the evidence” standard when adjudicating accusations of sexual misconduct was wrong. OCR says the standard must be used on campus because it is the standard used in federal courts for civil suits. But OCR’s comparison of campus tribunals with federal courts is deeply flawed because it fails to take into account the many due process protections required in federal courts that ensure the basic fairness of trials—protections that […]

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    • Responding to ‘Preponderance of the Evidence’ Advocates

      October 15, 2012

      On October 1, FIRE’s Joe Cohn penned an opinion piece for The Chronicle of Higher Education arguing against the decision by the Department of Education’s Office for Civil Rights (OCR) to mandate that colleges and universities use the “preponderance of the evidence” standard when adjudicating accusations of sexual misconduct. OCR insists the standard must be used on campus because it is the standard used in federal courts for civil suits, but this argument fails to recognize the long list of due process protections required in federal courts but not required on campus. These protections ensure the basic fairness of the […]

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    • Joe Cohn on Campus vs. Civil Trials in ‘The Chronicle of Higher Education’

      October 1, 2012

      Since April 4, 2011 (PDF), the Department of Education’s Office for Civil Rights (OCR) has been insisting that, in order to comply with Title IX, campuses must utilize our judiciary’s lowest standard of proof—the preponderance of the evidence standard—when adjudicating allegations of sexual misconduct. This means that if the fact finder believes the allegations are a mere 50.01% likely to be true, the accused is held responsible and is subject to discipline (which may even include expulsion). OCR’s and many of this policy’s proponents’ primary argument for requiring the preponderance of the evidence standard is that federal courts use that […]

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    • Former OCR Attorney: ‘Dear Colleague’ Letter’s Preponderance Mandate ‘Unlawful’

      September 12, 2012

      Today in College Insurrection, Competitive Enterprise Institute Senior Attorney and former Department of Education Office for Civil Rights (OCR) attorney Hans Bader pens an impressive analysis of how his old office missed the mark when it threatened to strip colleges and universities of federal funding if they did not, among other things, lower the standard of evidence necessary to discipline students for sexual misconduct to the low “preponderance of the evidence” standard.  Torch readers are likely familiar with the controversy, and Bader’s piece is well worth a read for its clarity, adding additional arguments as to why OCR’s April 4, […]

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    • Missouri State Latest School to Succumb to OCR Mandate

      August 29, 2012

      According to an article by Steve Pokin in Springfield, Missouri’s The News Leader, another school has succumbed to the Office for Civil Rights’ (OCR’s) April 4, 2011, “Dear Colleague” letter. Missouri State University (MSU) is the most recent casualty of OCR’s push to have colleges and universities across the country lower their standard of evidence for campus sexual harassment and sexual assault cases to the “preponderance of the evidence” (or “more likely than not”) standard. As FIRE has pointed out before, this standard only requires a mere 50.01% proof that an incident occurred, the lowest standard used in American courts.  […]

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    • KC Johnson on the Latest Threats to Due Process on Campus

      July 24, 2012

      Over at Minding The Campus, Professor KC Johnson reports on the latest “Tip of the Week” from the Association of Title IX Administrators, which advises universities on which modifications to make to their appeal processes following the “Dear Colleague” letter released by the Department of Education’s Office for Civil Rights in April 2011. As Johnson notes, the group’s suggested modifications “would almost certainly render successful appeals less likely.” For more on how these “modifications” threaten due process rights on campus, visit Minding The Campus. 

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    • A Balanced Approach to VAWA

      July 24, 2012

      Yesterday morning Inside Higher Ed joined The Chronicle of Higher Education in reporting that some domestic violence advocates and survivors of sexual assaults on university campuses have again asked Congress to iron out the differences between the two chambers’ versions of the Violence Against Women Reauthorization Act (“VAWA”). These advocates are encouraging Congress to pass a comprehensive bill before the session closes that includes protections for victims of sexual assaults in the college setting.  This latest push by advocates presents a good opportunity for FIRE to reiterate our hope that any final version of VAWA will take the rights of […]

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    • Where FIRE Stands on VAWA

      May 31, 2012

      Over the last few weeks, both chambers of Congress passed separate bills (S. 1925 in the Senate and H.R. 4970 in the House of Representatives) to reauthorize the Violence Against Women Act (VAWA). The two versions of VAWA passed by their respective legislative bodies have significant differences, primarily dealing with issues beyond the scope of FIRE’s mandate to protect core civil liberties on university campuses. To be clear: FIRE takes no position on the vast majority of the provisions contained in either bill. Much of the controversy surrounding the two competing versions concern issues that are outside of FIRE’s mission. […]

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    • Dueling Editorials at Stanford about Standard of Evidence

      May 24, 2012

      This week, the Stanford Daily student newspaper featured dueling editorials about Stanford’s decision to lower the standard of evidence in sexual misconduct cases in response to last year’s Dear Colleague letter from the Department of Education’s Office for Civil Rights (OCR). FIRE has taken the lead in opposing several provisions in that letter, which states that colleges and universities must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. The OCR regulations further require that if a university judicial process allows the accused student to appeal […]

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    • OCR: Reducing Protection for the Accused

      May 22, 2012

      Dissent about the Department of Education’s Office for Civil Rights’ (OCR’s) “Dear Colleague” letter continues around the country. Most recently, North Carolina-based John William Pope Center for Higher Education Policy reporter Duke Cheston weighed in with a piece called “Tilting the Scales on Sexual Violence.” Cheston hits the nail on the head:  [OCR's] new rules were touted as a way of promoting “enhanced equity.” But, in reality, the new rules rather inequitably reduce the protections of those who are accused … Cheston also examines how the Dear Colleague letter is adversely affecting the University of North Carolina at Chapel Hill. […]

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    • House VAWA Includes Millions for Controversial ‘Campus Safety’ Center

      May 17, 2012

      WASHINGTON, May 17, 2012—Yesterday, the U.S. House of Representatives passed its version of the Violence Against Women Reauthorization Act of 2012 (VAWA), which includes millions of dollars in federal funding to create a “National Center for Campus Public Safety.” The proposed Center raises serious concerns for students, faculty, colleges and universities, taxpayers, and campus rights advocates. As the Senate and House versions of VAWA appear poised to be reconciled in conference committee, the Foundation for Individual Rights in Education (FIRE) is urging Congress to reexamine support for the Center.   “While some aspects of both the House and Senate bills […]

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    • ‘Crimson’ Reports on Due Process Concerns as Harvard Revises Sexual Assault Policy

      May 14, 2012

      Last Friday, The Harvard Crimson updated readers on Harvard University’s ongoing study of its sexual assault policies, noting that the university’s policy options have been affected by the controversial April 4, 2011, “Dear Colleague” letter from the Department of Education’s Office for Civil Rights (OCR). Zeroing in on the ongoing debate about OCR’s decision to mandate the use of the “preponderance of the evidence” standard of proof in campus sexual misconduct proceedings, Crimson staff writer Rebecca D. Robbins writes: As Harvard’s peer institutions move to update their sexual misconduct policies by lowering the standard of evidence required for a guilty […]

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    • Dept. of Education Challenged by FIRE, Coalition about Silence on Threats to Student Rights

      May 7, 2012

      Here’s today’s press release:  WASHINGTON, May 7, 2012—In an open letter sent today, the Foundation for Individual Rights in Education (FIRE) and 19 other signatories urge the Department of Education’s Office for Civil Rights (OCR) to address the threats to student rights posed by OCR’s “Dear Colleague” letter regarding sexual harassment and sexual assault on campus.  Today’s open letter asks OCR to remedy the threat to student due process rights presented by new mandates announced in the agency’s April 4, 2011, “Dear Colleague” letter. OCR now requires that colleges and universities receiving federal funding employ our judiciary’s lowest standard of […]

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    • Dept. of Education Challenged by FIRE, Coalition about Silence on Threats to Student Rights

      May 7, 2012

      WASHINGTON, May 7, 2012—In an open letter sent today, the Foundation for Individual Rights in Education (FIRE) and 19 other signatories urge the Department of Education’s Office for Civil Rights (OCR) to address the threats to student rights posed by OCR’s “Dear Colleague” letter regarding sexual harassment and sexual assault on campus.  Today’s open letter asks OCR to remedy the threat to student due process rights presented by new mandates announced in the agency’s April 4, 2011, “Dear Colleague” letter. OCR now requires that colleges and universities receiving federal funding employ our judiciary’s lowest standard of proof (the “preponderance of […]

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    • FIRE to Stanford Graduate Student Council: Protect Students’ Due Process

      May 3, 2012

      The latest battleground for students’ due process rights when facing allegations of sexual misconduct appears to be Stanford University, which is contemplating measures in its Alternative Review Process (ARP) that would fail to adequately protect students who are accused of some of society’s vilest offenses. Yesterday, FIRE sent a letter to Stanford’s Graduate Student Council (GSC) urging the GSC to not approve those measures and to stand up for their fellow students’ fundamental due process rights. The ARP has been the subject of a good deal of discussion and debate on Stanford’s campus, and for good reason. Among other things, […]

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    • Bipartisan Support for Student Rights in Senate VAWA Reauthorization

      April 30, 2012

      WASHINGTON, April 30, 2012—The U.S. Senate made bipartisan progress on college student rights on Friday as it passed the Violence Against Women Reauthorization Act of 2011 (VAWA). Heeding the concerns of the Foundation for Individual Rights in Education (FIRE), Senators altered language in the final bill that might have required colleges and universities to employ our nation’s weakest standard of proof in adjudicating allegations of sexual misconduct.  “FIRE thanks Senators Patrick Leahy, Chuck Grassley, Robert Casey, Mike Crapo, and Kay Bailey Hutchison for their leadership in protecting students’ due process rights,” said FIRE President Greg Lukianoff. “Campus sexual misconduct can […]

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    • Cornell Becomes Latest College to Incorporate “Two-Tier” Disciplinary Process Following OCR Mandate

      April 27, 2012

      Yesterday, I discussed the ramifications of the Department of Education’s Office for Civil Rights’ (OCR’s) April 4, 2011, “Dear Colleague” letter for students at the University of North Carolina, which decided earlier this month to inaugurate a new “two-tier” disciplinary system to comply with OCR’s procedural mandates. Under the newly revised system, UNC students accused of misconduct like cheating, plagiarism, or drug and alcohol abuse will face a hearing using the “beyond a reasonable doubt” evidentiary standard employed in our criminal justice system, which has also traditionally been applied by UNC’s century-old Student Honor Court. In contrast, students facing serious […]

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    • ‘Inside Higher Ed’, KC Johnson on the University of North Carolina’s New ‘Two-tiered’ Disciplinary Procedures

      April 26, 2012

      Yesterday, Inside Higher Ed reported on the University of North Carolina’s recent decision to revoke its Student Honor Court’s power to adjudicate allegations of sexual misconduct. Inside Higher Ed‘s Allie Grasgreen writes:  The change, which some have sought for years, appears to be the most extensive yet in response to the “Dear Colleague” letter issued a year ago by the U.S. Education Department’s Office for Civil Rights. [...] But the change is also significant at the micro level: it marks a philosophical shift at UNC, where for more than a century, the student Honor Code states, “Carolina students have pledged […]

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    • AP: Sexual Assault Claims on Campus a ‘Legal Minefield’

      April 23, 2012

      This weekend, Justin Pope of the Associated Press came out with a pair of thorough and insightful articles about the “legal minefield” in which universities currently find themselves when it comes to addressing claims of sexual assault on campus. As Pope explains, Typically, colleges enjoy wide leeway in responding to student misconduct, whether that means using a disciplinary board to enforce their own rules or simply punting the matter to law enforcement. But as Title IX is now interpreted — and would be reinforced under a new version of the Violence Against Women Act awaiting a Senate vote — colleges […]

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    • FIRE Asks Cornell to Preserve Due Process

      April 11, 2012

      Yesterday, FIRE asked Cornell University President David Skorton to choose robust student due process rights over the weak evidentiary standard required by the U.S. Department of Education’s Office for Civil Rights (OCR). In our letter, we argue that given the high stakes for students accused of sexual assault, they deserve much more than the “preponderance of the evidence” (more likely than not) evidentiary standard. Torch readers know that FIRE and many others have made this argument repeatedly, and in many forums, in the year following the release of OCR’s April 4, 2011, “Dear Colleague” letter. As we wrote yesterday, Cornell […]

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    • Cornell Grad Urges University Not to Abandon Protections for the Accused

      April 10, 2012

      Cornell University graduate Mike Wacker has an excellent column in today’s Cornell Sun on the debate at Cornell over complying with the Department of Education’s April 4, 2011, “Dear Colleague” letter (DCL). As FIRE has pointed out, the DCL strips important due process protections from students accused of sexual harassment or sexual assault. Wacker hits on many of the problems that Cornell students and faculty members are having with the idea that campus trials for these serious offenses will now be far less thorough and reliable than those for, say, vandalism.  The entire column is a must-read. After summarizing the […]

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    • One Year Later, Silence from Department of Education’s Office for Civil Rights on Due Process, Free Speech Concerns

      April 4, 2012

      WASHINGTON, April 4, 2012—One year after issuing controversial federal regulations that require colleges and universities to reduce student due process rights, the United States Department of Education’s Office for Civil Rights (OCR) remains silent in the face of criticism from students, professors, alumni, university administrators, higher education lawyers, civil rights advocates, and the press. Today, the Foundation for Individual Rights in Education (FIRE) renews its call for the revocation of the new mandates imposed by the letter. OCR is the federal agency tasked with enforcing federal civil rights laws, including Title IX, in educational programs and institutions that receive federal funding. […]

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    • OCR’s April 4 Letter and Opposition in the National Media

      December 26, 2011

      As most FIRE supporters probably know, the single event that dominated our advocacy in 2011 was the April 4 “Dear Colleague” letter that the federal Department of Education’s Office for Civil Rights (OCR) sent to virtually every college in the country. The letter, presented as an attempt to address the real problem of sexual assault on campus, promulgated several deeply troubling ways of dealing with the issue, including requiring universities to lower their standard of proof in sexual harassment cases (of which assault is considered a subset) to the lowest possible standard, and imposing something that looks very much like, […]

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    • Naomi Schaefer Riley in ‘Chronicle’ on the Need to Allow Room for Law Enforcement to Handle Campus Crime

      November 18, 2011

      As Torch readers know, FIRE has been vocal in our opposition to the Department of Education’s Office for Civil Rights’ (OCR) mandate from earlier this year that universities adjudicating allegations of sexual assault and sexual harassment use the weak “preponderance of the evidence” standard of proof, which equates to a “more likely than not” standard, or 50.01 percent likelihood that a person committed an offense. As we have pointed out, this is an evidentiary standard appropriate for adjudicating parking tickets, not allegations of sexual assault and rape, which on campus often involve blurry issues of consent, alcohol use, lack of […]

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    • Threat to Student Due Process Rights Dropped from Draft of Violence Against Women Act

      November 14, 2011

      WASHINGTON, November 14, 2011—Responding to criticism from the Foundation for Individual Rights in Education (FIRE) and others, Senator Patrick Leahy of Vermont, who is Chairman of the Senate Judiciary Committee, will drop a provision in a draft of the Violence Against Women Reauthorization Act of 2011 that would have required college students accused of sexual assault to be tried under the weak “preponderance of the evidence” standard of proof. The Burlington Free Press (Vt.) quoted Erica Chabot, spokeswoman for the Senate Judiciary Committee, as saying, “Because of the feedback [Sen. Leahy] has received concerning this proposal, he does not plan to include it […]

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    • How a Due Process Abuser Became a Rape Apologist

      November 11, 2011

      On Tuesday, I blogged about an anonymous letter printed in Inside Higher Ed from a college administrator who was struggling to reconcile the demands of the April letter from the federal Department of Education’s Office for Civil Rights (OCR) with those of his or her job. My blog entry focused on how colleges and universities have set themselves up to fail to provide justice by using sexual assault hearing procedures that ignore traditional and in some cases literally ancient requirements of due process. (This problem was only made worse by OCR’s letter, mandating that all colleges must use the lowest possible […]

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    • An Anonymous College Administrator Struggles with the OCR Letter

      November 8, 2011

      As Torch readers well know, FIRE has been leading the outcry against the new mandates for injustice included in the April 4, 2011, “Dear Colleague” letter from the Department of Education’s Office for Civil Rights (OCR). As it turns out, we (and all of the students and faculty who suddenly find themselves stripped of some very basic rights) are not the only ones struggling with OCR’s mandates—at least some college administrators are as well. Inside Higher Ed published a letter from one such administrator who, of course, requested anonymity, but says he or she works at a “selective institution.” Let […]

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    • Cathy Young Highlights New Threats to Due Process on Campus

      November 7, 2011

      Writing for RealClearPolitics, columnist Cathy Young details the threats to due process rights for students accused of sexual harassment and sexual assault presented by recent guidance from the Department of Education’s Office for Civil Rights (OCR) and a new draft of a bill to reauthorize the Violence Against Women Act (VAWA). Young uses FIRE’s recent victory at the University of North Dakota on behalf of student Caleb Warner as a frame to evaluate the reduced evidentiary standard mandated by OCR—a standard that would be enshrined in federal law, were the VAWA draft currently circulating on Capitol Hill to pass: Nearly […]

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    • Changes to Violence Against Women Act Could Threaten Student Due Process Rights

      October 31, 2011

      In a press release issued today, FIRE warns that congressional legislation reauthorizing the Violence Against Women Act (VAWA) may include new provisions sharply reducing due process protections for college students accused of sexual assault. A draft of the Violence Against Women Reauthorization Act of 2011 circulated by Senator Patrick Leahy’s office effectively requires that colleges and universities receiving federal funding must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student complaints concerning sexual assault. The draft also includes a provision requiring universities to allow alleged victims of sexual assault to appeal the results […]

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    • Changes to Violence Against Women Act Would Threaten Student Due Process Rights

      October 31, 2011

      WASHINGTON, October 31, 2011—Congressional legislation reauthorizing the Violence Against Women Act (VAWA) may include new provisions sharply reducing due process protections for college students accused of sexual assault, the Foundation for Individual Rights in Education (FIRE) has learned. A draft of the Violence Against Women Reauthorization Act of 2011 circulated by Senator Patrick Leahy’s office effectively requires that colleges and universities receiving federal funding must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student complaints concerning sexual assault. The draft also includes a provision requiring universities to allow alleged victims of sexual assault […]

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    • FIRE Releases Survey of Evidence Standards Used by Nation’s Top Colleges

      October 28, 2011

      FIRE has compiled a survey of the standards of evidence employed by the nation’s top colleges and universities in an effort to gauge the impact of the new requirements announced by the Department of Education’s Office for Civil Rights (OCR). In an April 4, 2011, “Dear Colleague” letter, OCR mandated that colleges and universities receiving federal funding must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. Schools must adopt the low preponderance of the evidence standard or else risk losing federal funding. The preponderance of […]

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    • Controversy over OCR ‘Preponderance’ Mandate Reaches Southern Methodist U.

      October 24, 2011

      The Daily Campus, a student newspaper at Southern Methodist University (SMU), published an extensive article yesterday examining the ongoing controversy over the federal Department of Education’s Office for Civil Rights’ (OCR’s) April 2011 mandate that federally funded colleges and universities adjudicate allegations of sexual harassment and sexual violence under a lenient “preponderance of the evidence” evidentiary standard. This standard, as we’ve written many times, reduces the due process protections afforded to accused students by merely requiring that the evidence show the alleged offense is “more likely than not” (or approximately 50.01% likely) to have taken place. Quoting our own Will […]

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    • Did the Office for Civil Rights’ April 4 ‘Dear Colleague’ Letter Violate the Law?

      September 12, 2011

      As Torch readers are aware, we have spent significant time exploring the problems with the April 4, 2011, “Dear Colleague” letter issued by the Department of Education’s Office for Civil Rights (OCR). That time has primarily been spent examining the negative effects of OCR’s mandate that colleges and universities use the “preponderance of the evidence” standard when adjudicating cases of sexual misconduct. But we’ve also hinted at another major issue, as have Hans Bader (a former OCR attorney) and, most recently, Robert Smith at Real Clear Politics: Did OCR violate the law when it issued the “Dear Colleague” letter? A brief history and explanation of […]

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    • Robert in ‘Daily Caller': How New Federal Regulations Are Making Some Higher Ed Lawyers Rich

      September 2, 2011

      In The Daily Caller, FIRE Senior Vice President Robert Shibley criticizes the fact that some higher ed “risk management” lawyers are profiting from the new threat to campus due process prompted by the U.S. Department of Education’s Office for Civil Rights’ April 4, 2011, guidance letter. Robert points out that the National Center for Higher Education Risk Management (NCHERM) grossed $425,000 from a single seminar about complying with the new regulations. To read more about the dangers of the new regulations and the people who benefit, be sure to check out Robert’s full article at The Daily Caller.

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    • Former FIRE Intern Discusses OCR and Due Process

      September 1, 2011

      In a blog post for Students for Liberty today, 2011 FIRE intern David Deerson discusses how the Department of Education’s Office for Civil Rights’ (OCR’s) April 4 “Dear Colleague” Letter erodes due process on campus. On OCR’s requirement that schools use a “preponderance of the evidence” standard to adjudicate cases of sexual violence and sexual harassment, David writes, “What we see here is a case in which unelected bureaucrats have mandated to institutions, both public and private, that they must use the lowest standard of evidence possible when deciding whether or not to declare a young person guilty of heinous […]

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    • Adam in ‘The Huffington Post’ on ‘Sticking Up for Penises Everywhere’

      August 31, 2011

      In The Huffington Post, FIRE Vice President of Programs Adam Kissel cracks down on the new threat to due process on college campuses prompted by both the Campus SaVE Act and the U.S. Department of Education’s Office for Civil Rights’ (OCR’s) April 4, 2011, guidance letter. Both the Campus SaVE Act and OCR’s letter require colleges to use the “preponderance of the evidence” standard in adjudicating cases involving sexual assault. This 50.01% standard is our judiciary’s lowest standard of proof, and it does not sufficiently protect an accused person’s right to due process. In his post, Adam points to Sandy […]

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    • ‘Philadelphia’ Magazine Exposes Major Government Threat to Rights on Campus–And the Lawyers Who Profit

      August 26, 2011

      A must-read article in Philadelphia Magazine’s latest issue exposes the new federal threat to due process rights on campus regarding sexual misconduct and harassment—and the lawyers and organizations that profit from the mandate. One group even grossed $425,000 from a single seminar about complying with the new regulations. The article also features FIRE’s work to protect the rights of all students and the integrity of campus judiciaries by ensuring fair standards of justice. It reveals the flippant attitude towards fair procedures displayed by the lawyers who profit most from the government mandate. The article is essential reading for parents, college students, […]

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    • In ‘Wall Street Journal’ Op-Ed, Peter Berkowitz Takes on New OCR Mandates

      August 20, 2011

      In an opinion piece published in today’s Wall Street Journal, Peter Berkowitz argues that new mandates from the federal Department of Education’s Office for Civil Rights (OCR) reduce due process rights on campus in ways that will have devastating consequences for those falsely accused of sexual harassment and sexual assault. Anticipating the impact of OCR’s new requirements for university judicial processes, Berkowitz argues that “universities are institutionalizing a presumption of guilt in sexual assault cases.”  Berkowitz writes:  Most egregiously, OCR requires universities to render judgment using “a preponderance of the evidence” standard. This means that in a rape case, a campus disciplinary board […]

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    • Reflections on AAUP’s Criticism of OCR’s ‘Preponderance of the Evidence’ Standard in Defense of Faculty Rights

      August 19, 2011

      I wrote yesterday that the American Association of University Professors (AAUP) had sent a second letter to the federal Department of Education’s Office for Civil Rights (OCR) in order to extend its criticism of OCR’s new “preponderance of the evidence” requirement when colleges adjudicate cases of sexual harassment. The new, lowered evidentiary standard threatens the free speech and due process rights of faculty members (and students) nationwide, as we have explained in detail. This post looks a little more closely at the AAUP’s letter. First, it is quite significant that two different units of the AAUP have now expressed their concern […]

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    • This Week in FIRE News: Opposition to OCR’s New Standards Grows

      August 19, 2011

      The United States Department of Education’s Office for Civil Rights (OCR) has been receiving criticism from concerned organizations and the media since its April 4, 2011, letter announcing that colleges and universities receiving federal funding must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating complaints against students or faculty concerning sexual harassment or sexual violence. This week is no exception. The American Association of University Professors (AAUP) echoed FIRE’s argument that the new standard inappropriately reduces due process rights in its first letter to OCR on June 27, asking that OCR rescind the […]

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    • AAUP Extends Criticism of OCR ‘Preponderance of the Evidence’ Standard, Defends Faculty Rights

      August 18, 2011

      The American Association of University Professors (AAUP) has written a second letter (.PDF) to the federal Department of Education’s Office for Civil Rights (OCR) in order to extend its criticism of OCR’s new “preponderance of the evidence” requirement when colleges adjudicate cases of sexual harassment. The new, lowered standard threatens the free speech and due process rights of faculty members (and students) nationwide. AAUP’s second letter, dated today, August 18, 2011, follows upon the June 27, 2011, letter to OCR from Gregory F. Scholtz, Director of the AAUP’s Department of Academic Freedom, Tenure, and Governance. This new letter comes from AAUP President Cary Nelson […]

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    • FIRE Publishes FAQ for Students on New OCR Mandates

      August 17, 2011

      FIRE has published answers to frequently asked questions from students about the new threats to due process and freedom of speech presented by recent guidance from the federal Department of Education’s Office for Civil Rights (OCR). Among other things, FIRE’s FAQ explains why mandating that colleges and universities employ the “preponderance of the evidence” standard for allegations of sexual harassment and sexual violence is inappropriate and why this lowered standard threatens free speech and due process. The FAQ also explains why OCR exerts so much power over institutions of higher learning: What does OCR do? OCR enforces various federal laws […]

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    • Former FIRE Intern Defends Due Process in ‘The Philadelphia Inquirer’

      August 15, 2011

      Cynthia Bell, a rising senior at Seton Hall University and 2010 FIRE intern, contributed an opinion piece to The Philadelphia Inquirer this weekend in which she defends student due process in academia. Cynthia explains why the U.S. Department of Education’s Office for Civil Rights’ (OCR’s) April 4 letter to colleges and universities, mandating the “preponderance of the evidence” standard of evidence for sexual harassment and sexual assault cases, is problematic for student rights on campus: [S]exual assault is a criminal offense, and a felony to boot. It is a serious crime that should be reported to the police, not dealt […]

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    • This Month in FIRE History: OCR Reinforces First Amendment Protections on Campus

      August 11, 2011

      While FIRE’s criticisms of the federal Department of Education’s Office for Civil Rights (OCR) have been manifold of late, nine years ago this month we saluted OCR for its statement in defense of free speech on campus. The episode serves as an excellent lesson for today’s debate over OCR’s recent guidance regarding campus adjudication of sexual harassment and sexual assault cases. In late July 2003, OCR dealt a major blow to campus censorship when it issued a “Dear Colleague” letter to colleges and universities nationwide that clarified the need for university administrators to respect students’ individual rights and freedom of […]

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    • Untangling the Web of Federal Regulations on Campus Sexual Assault

      August 2, 2011

      In his latest piece for PolicyMic, FIRE’s Peter Bonilla writes about the impact that federal regulations have had on colleges and universities as they try to address issues of campus sexual assault and other criminal behavior. Peter follows up on a previous piece for PolicyMic in which he assessed the fallout from the Department of Education’s Office for Civil Rights’ (OCR’s) April 4 letter to universities; OCR’s policy guidance, as we’ve written in many places, represents a major threat to the due process rights of students accused of sexual assault or sexual harassment. In this week’s follow-up, Peter points out […]

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    • AAUP to Office for Civil Rights: New Evidence Requirement Conflicts with Our Standards, Jeopardizes Academic Freedom and Tenure

      July 29, 2011

      The American Association of University Professors (AAUP) has joined FIRE in asking the U.S. Department of Education’s Office for Civil Rights (OCR) to rescind its new mandate that colleges use a “preponderance of the evidence” standard of proof when adjudicating cases of alleged sexual harassment or assault. The AAUP’s stance on this issue defends fundamental fairness and due process in higher education, and we are grateful for this important support. In a June 27, 2011, letter to OCR, Gregory F. Scholtz, Director of the AAUP’s Department of Academic Freedom, Tenure, and Governance, explained that the requirement demands a “lower standard of proof than what we consider […]

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    • American Association of University Professors Asks Office for Civil Rights to Withdraw New Evidence Requirement

      July 28, 2011

      The American Association of University Professors (AAUP) has joined FIRE in asking the U.S. Department of Education’s Office for Civil Rights (OCR) to rescind its new mandate that colleges use a “preponderance of the evidence” standard of proof when adjudicating cases of alleged sexual harassment or assault. In a June 27 letter to OCR, Gregory F. Scholtz, Director of the AAUP’s Department of Academic Freedom, Tenure, and Governance, explained that the requirement demands a “lower standard of proof than what we consider necessary to protect academic freedom and tenure,” and noted that the lowered standard conflicts with AAUP recommendations. (The AAUP has not commented on […]

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    • Ilya Shapiro on the Dangers of the April 4 OCR Guidance

      June 23, 2011

      Yesterday over at Cato@Liberty, Senior Fellow in Constitutional Studies Ilya Shapiro blogged about the Department of Education’s Office for Civil Rights’ (OCR’s) overreaching April 4 “Dear Colleague” letter, which requires federally funded colleges and universities to use a “preponderance of the evidence” (i.e., more likely than not) evidentiary standard when adjudicating claims of sexual violence and sexual harassment on campus. OCR’s guidance adds yet another layer of regulation to the already overregulated campus environment, where protected speech is frequently grounds for punishment. Among other things, Ilya points to Michael Barone’s excellent article in The Examiner on the subject, reiterating the […]

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    • Robert Tackles OCR’s Threat to Campus Rights on WGN Radio

      June 22, 2011

      FIRE Senior Vice President Robert Shibley will be featured on Chicago’s WGN Radio 720 at 11:05 a.m. EDT tomorrow morning. Tune in or listen live as Robert tackles the federal Department of Education’s Office for Civil Rights’ (OCR’s) controversial guidance for universities in its April 4 “Dear Colleague” letter, which threatens student rights on our nation’s campuses. Robert will also be discussing pundit Michael Barone’s recent take on the OCR letter in his latest column for The Examiner. OCR’s mandate, which continues to foster concern in the media, requires colleges and universities receiving federal funding to employ the low “preponderance […]

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    • Michael Barone Takes on OCR’s Erosion of Campus Due Process

      June 22, 2011

      Add pundit Michael Barone to the steadily growing list of those concerned about the new federally mandated standard of evidence for campus judicial procedures involving allegations of sexual harassment and sexual violence. Barone’s latest column for The Examiner, where he is the senior political analyst, takes on the Department of Education’s Office for Civil Rights’ (OCR’s) recent decision to require colleges and universities receiving federal funding (in other words, virtually all institutions of higher learning) to employ the “preponderance of the evidence” evidentiary standard (i.e., more likely than not) when adjudicating complaints of sexual harassment and sexual violence. This new […]

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    • Greg in ‘The Huffington Post’ on Federal Government’s Threat to Free Speech

      June 17, 2011

      FIRE President Greg Lukianoff is examining one of the newest dangers for free speech on campus in his latest piece for The Huffington Post. (A version of the article also appeared in The Daily Caller.) Greg argues that the new guidance for addressing sexual harassment and sexual assault cases laid out by the U.S. Department of Education’s Office for Civil Rights (OCR) in an April 4, 2011, letter threatens to create “a perfect storm for rights violations” by encouraging universities to enforce overbroad harassment codes and ignore individual rights: While OCR’s April 4 letter is aggressive and specific in requiring universities to police harassment, it took […]

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    • FIRE: One-Trick Ponies in Tinfoil Hats?

      June 9, 2011

      FIRE’s defense of due process rights for students accused of sexual harassment and sexual violence continues to draw overheated responses from student conduct administrators. Last week, Will responded to a May 13 blog post by Illinois State University Associate Dean of Students Richard Olshak, who criticized FIRE for our opposition to the Department of Education’s Office for Civil Rights’ (OCR’s) “Dear Colleague” letter requiring universities to use a “preponderance of the evidence” standard when adjudicating claims of sexual violence. On May 17, FIRE was again the topic of discussion on Olshak’s blog, where he posted a guest comment by Dan […]

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    • FIRE Board of Advisors Member Christina Hoff Sommers Illustrates Problems with Government’s Sexual Assault Guidance in ‘Chronicle of Higher Education’

      June 6, 2011

      In a stirring piece for The Chronicle of Higher Education, FIRE Board of Advisors member Christina Hoff Sommers takes on the most serious due process problems presented by the U.S. Department of Education’s Office for Civil Rights’ (OCR’s) recent policy guidance to colleges and universities regarding their obligations to address sexual harassment and sexual assault of students. Sommers writes that OCR’s April 4 “Dear Colleague” letter, mandating that federally funded institutions use the “preponderance of the evidence” standard of proof to adjudicate these cases on campus, places universities in a difficult position and compromises campus justice in situations where much […]

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    • FIRE’s ‘One Trick': Protecting Civil Liberties

      June 2, 2011

      Given the deeply deserved contempt we as a society harbor for those guilty of sexual assault, I suppose it was only a matter of time before somebody confused FIRE’s continuing defense of due process rights for those accused of sexual assault with a defense of the heinous acts themselves. Because any decent human being finds rape reprehensible, discussing how to respond to sexual assault engenders strong feelings. As a result, it is perhaps unsurprising that some observers are angry and confused about our May 5 open letter to the Department of Education’s Office for Civil Rights (OCR) and our work […]

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    • Jeffrey Hadden of ‘Detroit News’ the Latest to Join the Chorus Against OCR’s Policy Guidance

      May 31, 2011

      Last week, I wrote about a great piece submitted to Minding the Campus by FIRE Co-founder and Board of Directors Chairman Harvey Silverglate and Program Associate Kyle Smeallie regarding the Department of Education’s Office for Civil Rights’ (OCR’s) recent policy guidance to colleges and universities that has been making so many waves amongst those of us who care about freedom of speech and due process in higher education. Harvey and Kyle’s piece captured much of what concerns the many commentators who have spoken out in opposition to OCR’s April 4 “Dear Colleague” letter, as well as OCR’s investigation of Yale […]

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    • In ‘PolicyMic,’ FIRE’s Peter Bonilla Discusses OCR’s Threat to Free Speech

      May 27, 2011

      In his latest piece for PolicyMic, Peter Bonilla—Assistant Director of FIRE’s Individual Rights Defense Program—explains exactly how the April 4 “Dear Colleague” letter from the U.S. Department of Education’s Office for Civil Rights (OCR) will negatively impact student speech rights on campus. As Torch readers know, we’ve been focusing primarily on the due process implications of the letter’s mandates. But, echoing Greg’s piece for The Daily Caller earlier this week, Peter points out that OCR’s failure to reaffirm that its enforcement of civil rights laws must respect First Amendment rights compounds the threat to student speech already presented by many […]

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    • Harvey and Kyle on ‘Minding the Campus’ on What Yale Should Have Said to OCR

      May 24, 2011

      FIRE Co-founder and Board of Directors Chairman Harvey Silverglate and Program Associate Kyle Smeallie have written an excellent, though-provoking piece on Minding the Campus about what Yale University President Richard Levin should have said to the Department of Education’s Office for Civil Rights (OCR) regarding the Delta Kappa Epsilon (DKE) fraternity. Under investigation by OCR for allegedly maintaining a sexually hostile environment, Yale announced last week that it was suspending DKE for five years for chants uttered by its pledges as part of a hazing ritual in October 2010. Rather than—from all appearances—cave in to federal pressure so quickly and […]

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    • Why Yale Frat Chants Are Not ‘Harassing’ or ‘Threatening’

      May 19, 2011

      It’s unsurprising that the “Yale fraternity case,” which we covered yesterday, is big news. A famous fraternity, of which both Presidents Bush were members, was suspended by Yale University for five years because its pledges marched through campus chanting “No means yes, yes means anal” and “My name is Jack, I’m a necrophiliac, I f— dead women.”  The profuse apologies of the president of the Yale chapter of Delta Kappa Epsilon (DKE), who called the pledge chants “inappropriate, disrespectful, and very hurtful to others,” were apparently insufficient. The Women’s Center at Yale described the speech as “an active call for sexual violence,” and several […]

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    • Cato’s Roger Pilon on OCR and its Threat to Student Due Process

      May 13, 2011

      Roger Pilon, Vice President of Legal Affairs for the Cato Institute, takes a keen interest in the latest dictates from the Department of Education’s Office for Civil Rights (OCR) at the Cato @ Liberty blog. FIRE has provided copious commentary on the grave threats to student due process and free speech rights emanating from OCR’s April 4 “Dear Colleague” letter, which, among other things, mandates that sexually based offenses—including violent crimes—be adjudicated by universities using a “preponderance of the evidence” standard that falls far lower than the standard courts would use to address criminal sexual offenses. Pilon sees this as […]

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    • Everyone is Harmed by Reducing Due Process in Campus Sexual Assault Cases

      May 13, 2011

      Most everyone would agree that combating sexual violence on college campuses is of critical importance. However, eviscerating students’ due process rights is not the way to do it. Some women’s rights advocates have been celebrating new policy guidance from the Department of Education’s Office for Civil Rights (OCR) instructing schools to apply a “preponderance of the evidence” standard—roughly 51% proof—when adjudicating claims of sexual harassment and sexual violence in disciplinary proceedings. In a recent column for The Enterprise, for example, Wendy Murphy wrote that Harvard Law School and U.Va. are under investigation because they require sexual assault victims to prove […]

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    • New OCR Letter Marks Radical Change in Due Process Guidance

      May 10, 2011

      Last week, FIRE sent an open letter to the Department of Education’s Office for Civil Rights (OCR) in response to OCR’s April 4, 2011, letter to federally funded colleges and universities nationwide, regarding their obligations to address sexual harassment and sexual assault on campus. As we discussed in our press release accompanying the open letter, OCR’s latest policy guidance is, for a number of reasons, a deeply disappointing and concerning development for anyone who cares about individual rights and liberty in the academic setting. I have already covered on The Torch the fact that OCR’s April 4 letter, while calling […]

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    • Schools in a Rush to Comply with Office for Civil Rights’ ‘Dear Colleague’ Letter

      May 9, 2011

      Last week, FIRE sent an open letter to the Department of Education’s Office for Civil Rights (OCR), taking issue with several aspects of its April 4, 2011, “Dear Colleague” letter. FIRE’s central concern regarding OCR’s letter lies with its damaging impact on the due process rights of students accused of sexual harassment or sexual violence. The letter mandates that colleges and universities receiving federal funding employ the “preponderance of the evidence” (i.e., more likely than not) standard, rather than the “clear and convincing evidence” standard, when adjudicating student charges of sexual harassment and sexual violence. This policy shift means that […]

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    • This Week in the News: FIRE Responds to OCR Letter

      May 6, 2011

      Torch readers are well aware of FIRE’s firm stance against the April 4, 2011, letter from Assistant Secretary for Civil Rights Russlynn Ali of the United States Department of Education’s Office for Civil Rights (OCR) to all colleges and universities receiving federal funding. The letter demands that schools lower the standard of proof to a “preponderance of evidence” standard when adjudicating student disciplinary matters concerning sexual harassment or sexual violence. Just yesterday, FIRE sent out an open letter to OCR and issued a press release about how lowering the standard of proof would be a huge blow to students’ due […]

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    • Federal Government’s Legislative and Regulatory Push Ignores Individual Rights in Zeal to Protect Students

      May 6, 2011

      Recent regulatory and legislative efforts from Washington demonstrate the lengths to which the federal government will go to mandate widespread cultural changes on campus. Although well-intended, this push largely ignores free speech and due process rights in its apparently single-minded focus on protecting students from sexual violence, harassment, or bullying. A central example of this overzealousness is the federal Tyler Clementi Higher Education Anti-Harassment Act. The Act, sponsored by Senator Frank Lautenberg and Representative Rush Holt, both of New Jersey, was introduced in response to actions that already constituted a criminal offense­—the illegal videotaping and transmission of a sexual encounter […]

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    • Office for Civil Rights Fails to Acknowledge Free Speech Rights When Addressing ‘Sexual Harassment’ on Campus

      May 5, 2011

      As today’s press release describes, FIRE has sent an open letter to the Department of Education’s Office for Civil Rights (OCR) in response to OCR’s guidance letter of April 4, 2011, sent to colleges and universities across the nation regarding their obligation to address sexual harassment and sexual assault on campus. OCR’s policy guidance calls for a significant lowering of the due process protections afforded to students accused of these campus offenses. FIRE is very concerned about these calls for policy and procedural change, given the gravity of the offenses at issue and the dire consequences they can have for a student’s academic career, personal life, […]

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    • New Federal Regulations Limit Due Process, Free Speech Rights on Campus

      May 5, 2011

      Earlier today, FIRE sent an open letter to the United States Department of Education’s Office for Civil Rights (OCR) sharply criticizing the agency’s new requirements. Under the new regulations, announced in an April 4, 2011, letter from Assistant Secretary for Civil Rights Russlynn Ali, colleges and universities receiving federal funding must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student disciplinary matters concerning sexual harassment or sexual violence. Institutions that do not comply face federal investigation and the loss of federal funding. As Greg says in the press release we sent earlier today: […]

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    • FIRE: New Federal Regulations Limit Due Process, Free Speech Rights on Campus

      May 5, 2011

      WASHINGTON, May 5, 2011—In response to new federal regulations announced last month that require colleges and universities to dramatically reduce students’ due process rights, the Foundation for Individual Rights in Education (FIRE) today sent an open letter to the United States Department of Education’s Office for Civil Rights (OCR) sharply criticizing the agency’s new requirements. Under the new regulations, announced in an April 4, 2011, letter from Assistant Secretary for Civil Rights Russlynn Ali, colleges and universities receiving federal funding must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student complaints concerning sexual […]

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    • FIRE Issues Statement in Response to OCR ‘Dear Colleague’ Letter on Universities’ Obligations Regarding Sexual Harassment and Sexual Assault

      April 4, 2011

      FIRE has issued a statement in response to the Department of Education’s Office for Civil Rights’ (OCR’s) “Dear Colleague” letter, sent today to federally funded colleges and universities, regarding schools’ obligations under federal regulations to address sexual harassment and sexual assault. Our statement reads, in full: The April 4, 2011, “Dear Colleague” letter from the Department of Education’s Office for Civil Rights raises questions about OCR’s continued respect for the free expression rights enjoyed by students at our nation’s college campuses. In discussing the legal obligations borne by colleges and universities under Title IX to respond to both sexual harassment […]

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    • Letter from the United States Department of Education’s Office for Civil Rights, July 28, 2003

      July 28, 2003

      UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR CIVIL RIGHTSTHE ASSISTANT SECRETARY July 28, 2003 Dear Colleague: I am writing to confirm the position of the Office for Civil Rights (OCR) of the U.S. Department of Education regarding a subject which is of central importance to our government, our heritage of freedom, and our way of life: the First Amendment of the U.S. Constitution. OCR has received inquiries regarding whether OCR’s regulations are intended to restrict speech activities that are protected under the First Amendment. I want to assure you in the clearest possible terms that OCR’s regulations are not intended […]

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