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

By on 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 new mandate. We are pleased to report that just yesterday, AAUP sent a second letter (.PDF) to OCR, extending its criticism further.

Writing jointly, AAUP President Cary Nelson and Chair of the Committee on Women in the Academic Profession Ann E. Green state:

While we strongly support the bulk of "Dear Colleague," share your commitment to "providing all students with an educational environment freed from discrimination," and agree that "the sexual harassment of students, including sexual violence, interferes with students’ right to receive an education," we are concerned about two areas where academic freedom may potentially be violated.  The first concern is the "preponderance of evidence" standard, and the second is the potential violation of academic freedom for those who teach courses with sexuality or sexual content.

Given the seriousness of accusations of harassment and sexual violence and the potential for accusations, even false ones, to ruin a faculty member’s career, we believe that the "clear and convincing" standard of evidence is more appropriate than the "preponderance of evidence" standard. [ ... ]

You can read more about AAUP’s second letter at The Chronicle of Higher Education, Inside Higher Ed, and The Daily Caller.

Elsewhere, former FIRE intern and rising Seton Hall University senior Cynthia Bell draws a connection between Casey Anthony’s verdict and the threatening effect of OCR’s new standard in an op-ed for The Philadelphia Inquirer this week:

One valuable lesson from [Anthony's] trial is the reminder that every American enjoys the protections afforded by the Fifth and Fourteenth Amendments to the U.S. Constitution. These amendments restrict the power of federal and state governments by recognizing our right to due process, the canons of fairness in judicial proceedings that safeguard the innocent. Basically, due process affords Americans the presumption of innocence until proved guilty.

And for all the emotion and hype over the Anthony trial, the real threat to that presumption is in the world of higher education.

Cynthia argues that sexual assault is a criminal offense and a felony that should be reported to the police, not dealt with by campus judiciary systems with a low standard of proof. We’re proud to have a FIRE alumna arguing for fundamental rights in the pages of a major newspaper like the Inquirer.

In other news, we happily report that two universities have eliminated policies that limit free speech on campus this week, paving the way for more open marketplaces of ideas.

First, Tiffany Stevens of the University of Georgia (UGA) student newspaper The Red and Black writes that UGA has removed its housing department’s Acts of Intolerance policy, reporting that student harassment cases in housing will now fall under the Student Code of Conduct. Stevens says, "The Acts of Intolerance section, a clause which aimed to protect students from ‘behaviors that, by intent and/or outcome, harm[ed] or threaten[ed] to harm’ students, was recently removed from Housing Policy in favor of the University’s Non-Discrimination and Anti-Harassment policy." FIRE Director of Legal and Public Advocacy Will Creeley further explains:

"Those [new] policies are generally acceptable. We list much of the Non-Discrimination and Anti-Harassment policy, specifically the exact definition of harassment as a green light," Creeley said. "We give it a passing grade when it comes to protecting free speech and simultaneously fulfilling the University’s legal and moral obligation to address discriminatory harassment."

[ ... ]

"Our concern was that the Acts of Intolerance policy was so broadly written that there were possibilities in restricting students’ ability to engage in protected speech," he said. "It was too broad and it was vague. And as a result of that vagueness, students would choose to self-censor. Being offended is part of the deal when you accept free speech."

Second, a round of applause goes out to San Diego State University (SDSU) for upgrading its "red light" speech code rating to "yellow" as the result of the complete removal of a policy that heavily restricted the content of emails sent via SDSU’s network or computers. Beth Elderkin, managing editor of SDSU’s student newspaper, The Daily Aztec, has the story.

And finally, the headline of the week goes out to Bill Gleason of The Chronicle of Higher Education, for his blog post on recent issues that have come up regarding Garcetti v. Ceballos:

Like Jason in ‘Friday the 13th’? Garcetti’s back!

The FIRE has an interesting post on the latest developments in the Garcetti situation. Briefly, a number of cases are bubbling up toward the Supreme Court that concern the limits of academic freedom in public universities as a result of the Garcetti v. Ceballos decision. My non-lawyerly interpretation of the decision is that the Court ruled that an attorney, who criticized a warrant, had no First Amendment free-speech protection in doing so, since he made these statements as a public employee.

This logic has been the basis of a number of decisions at the appellate level where the applicability to free speech in public universities has been uneven as outlined in the FIRE piece.

Gleason’s piece was prompted by Azhar’s Tuesday blog entry in which he reported that Northeastern Illinois University (NEIU) professor Loretta Capeheart’s lawsuit alleging violation of her First Amendment rights by her employer is the latest case to test the speech protections afforded to public university faculty in the aftermath of the Supreme Court’s 2006 decision in Garcetti. Peter Schmidt of the Chronicle reports on Capeheart’s story in full, here.

Stay tuned for more, including further analysis of the AAUP’s second letter to OCR, here on The Torch.

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