U.S. Department of Education’s Office for Civil Rights: Federal Lawsuit Challenges April 4, 2011, “Dear Colleague” Letter

Category: Due Process
Schools: University of Virginia

On June 16, 2016, a former University of Virginia School of Law student filed a federal lawsuit challenging the Department of Education’s (ED’s) unlawful mandate that colleges abandon due process protections and try sexual misconduct cases using the lowest standard of evidence. FIRE and other civil liberties advocates have continually objected to the ED’s “preponderance of the evidence” mandate since its Office for Civil Rights announced the requirement in a 2011 “Dear Colleague” letter. Advocates have warned that the letter diminishes accused students’ due process rights and violates the Administrative Procedure Act. FIRE is sponsoring the lawsuit.

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    By Tyler Kingkade at Buzzfeed Tamara Rice Lave expected a lot of disagreement when she invited 12 lawyers and professors to a dinner in Chicago on March 3, a day before they all sat down to talk about campus rape policies. But the tension was eased by margaritas, guacamole, and a baby. Read more here.

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  • DeVos on right track with Title IX guideline changes

    September 15, 2017

    By The Oklahoman Editorial Board at The Oklahoman AS U.S. Education Secretary Betsy DeVos announced last week that needed changes were coming to Title IX rules regarding schools’ handling of sexual assault cases, protesters outside the hall at George Mason University held signs that said such things as “Justice for survivors” and “Sexual assault on campus is no joke.” Yet DeVos feels the same way, and made that clear in her remarks. Read more here.

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    September 11, 2017

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  • DeVos Moves to Rein in the Campus Kangaroo Courts

    September 8, 2017

    By Frederick M. Hess and Grant Addison at The National Review In an anticipated speech yesterday, delivered at George Mason University’s Antonin Scalia School of Law, Secretary of Education Betsy DeVos announced that the U.S. Department of Education is moving to end the reckless Title IX enforcement regime adopted by the Obama administration. Read more here.

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  • DeVos to scrap Obama-era school sexual assault policy

    September 7, 2017

    By Benjamin Wermund at Politico Education Secretary Betsy DeVos said Thursday that she will rescind an Obama-era schools directive on sexual assault and develop a replacement that she said would do a better job of balancing the rights of victims and the accused… Read more here.

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  • DeVos announces review of Obama-era sexual assault guidance

    September 7, 2017

    By Sophie Tatum at CNN Education Secretary Betsy DeVos announced Thursday that the department will review Obama-era guidance on campus sexual assault, citing concerns that the current policy denies due process to individuals accused… Read more here.

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  • Betsy DeVos to Overhaul Obama-Era Title IX Guidance on Campus Sex Assault

    September 7, 2017

    Daniella Silvia at NBC News Education Secretary Betsy DeVos said Thursday that the Obama administration’s guidance for how campuses address sexual assault “failed too many students” and announced that she intended to replace the department’s current approach “with a workable, effective and fair system.”… Read more here.

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  • US to overhaul university campus sexual assault policy

    September 7, 2017

    By Staff at The BBC She said any new guidance on sexual assault must take into account both the rights of victims and the accused… Read more here.

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  • Education Department to Overhaul Process for Sexual Assault Cases

    September 7, 2017

    By Melissa Korn at The Wall Street Journal Education Secretary Betsy DeVos on Thursday said the department plans to roll back the Obama administration’s guidance on how colleges and universities should handle sexual assault cases… Read more here.

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  • Ruling in lawsuit challenging September 2017 Title IX interim guidance opens door for more lawsuits by advocacy groups

    October 12, 2018

    A federal judge has granted the Department of Education’s motion to dismiss a lawsuit challenging ED’s Sept. 22, 2017 interim guidance, which rescinded its problematic April 4, 2011 “Dear Colleague” letter regarding how schools must respond to allegations of sexual misconduct under Title IX. But the ruling still has the potential to make the government vulnerable to a barrage of lawsuits from nonprofit organizations that previously looked unlikely to succeed. Back in January, nonprofit advocacy organizations SurvJustice, Equal Rights Advocates, and the Victim Rights Law Center filed a lawsuit against ED, Secretary of Education Betsy DeVos, and Assistant Secretary for […]

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  • FIRE-backed lawsuit challenging Department of Education’s unlawful Title IX mandate voluntarily withdrawn

    February 21, 2018

    WASHINGTON, Feb. 21, 2018 — Today, attorneys representing the U.S. Department of Education joined with attorneys for plaintiffs John Doe and Oklahoma Wesleyan University to ask a federal court to dismiss a lawsuit challenging the now-withdrawn mandate that colleges and universities use the low “preponderance of the evidence” standard of proof in all sexual misconduct cases. The Foundation for Individual Rights in Education sponsored the June 2016 lawsuit as part of its mission to restore due process to our nation’s campuses. John Doe and Oklahoma Wesleyan charged that the preponderance mandate did not undergo public notice and comment as required […]

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  • FIRE to Dept. of Ed: Campus Title IX proceedings must be fair

    October 5, 2017

    Yesterday, FIRE testified at the Department of Education’s hearing on regulatory reform, which sought public input on “regulations that may be appropriate for repeal, replacement, or modification.” In light of Secretary Betsy DeVos’ recent announcement that the department will revisit its approach to enforcing Title IX of the Education Amendments of 1972, FIRE took yet another opportunity to ask the department to prioritize fair procedures and due process for both alleged victims of sexual misconduct and those accused of it. FIRE has been critical of the previous administration’s Title IX guidance documents, which hindered its laudable efforts to combat campus […]

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  • Dear Colleague: It’s over! Education Department rescinds controversial 2011 letter

    September 22, 2017

    The 2011 “Dear Colleague” letter eviscerated due process rights of students and faculty accused of sexual misconduct on campus The letter mandated a low standard of proof for findings of guilt, discouraged cross-examination, and urged colleges to allow for double jeopardy The letter was extensively criticized by FIRE, other civil liberties groups, and law professors WASHINGTON, Sept. 22, 2017 — Six years of federal Title IX policy that stripped college students and faculty members of important due process protections and sowed confusion among administrators is finally over. Today, the Department of Education’s Office for Civil Rights announced that the April […]

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  • DeVos: Process to rescind ‘Dear Colleague’ letter has begun

    September 8, 2017

    In a passionate speech at George Mason University’s Antonin Scalia Law School yesterday, Secretary of Education Betsy DeVos said that the Department of Education would be revisiting its approach to enforcing Title IX in order to ensure better outcomes for survivors of sexual assault and fairer procedures for all. We were happy to hear the Secretary unequivocally declare that “the era of ‘rule by letter’ is over” and that the department will be initiating a notice-and-comment process to formally solicit input from stakeholders. Hours later, in an interview with CBS News, she further revealed that the Department is rescinding the […]

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  • [UPDATE] Education Department says it will finally confront its role in campus due process crisis

    September 7, 2017

    UPDATE (September 8, 2017): In an interview last night with CBS News, Education Secretary Betsy DeVos said the department plans to rescind the previous administration’s controversial “Dear Colleague” letter on campus sexual misconduct. The letter has long been criticized by FIRE and other civil liberties advocates as severely curtailing due process rights on campus. CBS News’ Jan Crawford asked Devos, “Are you today rescinding the Obama administration guidelines?” “Well, that’s the intention, and we’ve begun the process to do so,” said DeVos. “As I’ve said earlier, in all of this discussion, it really is a process not an event.” “The […]

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  • Feds request pause in lawsuit as Department of Education reconsiders unjust campus sexual assault mandate

    August 14, 2017

    On Friday, federal attorneys asked the United States District Court for the District of Columbia to hold in abeyance for 90 days a lawsuit challenging the Department of Education’s unlawful 2011 mandate that schools use the low “preponderance of the evidence” standard when determining guilt in campus sexual assault hearings. Defendants requested the pause in Doe v. Lhamon, No. 1:16-cv-01158 (RC) (D.D.C. Aug. 15, 2016), because the department’s Office for Civil Rights “is reviewing the 2011 Dear Colleague Letter that is challenged in this litigation.” The lawsuit challenging this unjust mandate was brought by a John Doe student plaintiff and […]

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  • Report: Candice Jackson appointed acting head of Department of Education’s Office for Civil Rights

    April 3, 2017

    Several outlets are reporting that attorney Candice E. Jackson of Vancouver, Washington, has been appointed acting head of the Department of Education’s Office for Civil Rights. A statement from her alma mater, Pepperdine University School of Law, provides more detail, saying that she will be “Deputy Assistant Secretary for Civil Rights, and Acting Assistant Secretary for Civil Rights.” The Assistant Secretary for Civil Rights is the head of OCR and must be confirmed by the Senate, so Jackson will act in that capacity until she or someone else is permanently appointed. Obviously, FIRE has its disagreements with the OCR when it comes […]

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  • ‘TWISTING TITLE IX’ WEEK: Title IX Enforcement Has Continued Negative Effect on Freedom of Expression

    September 29, 2016

    As my colleague Samantha Harris wrote yesterday, students’ due process rights have been endangered by the Office for Civil Rights’ (OCR’s) guidance relating to, and enforcement of, Title IX over the past five years. Unfortunately, OCR has also taken several steps in recent years that have spurred colleges and universities to violate students’ and professors’ free speech rights under the guise of protecting students from sexual harassment. Title IX requires schools to respond to allegations of sexual harassment in order to ensure no students are denied access to an education because of their sex. Accordingly, ensuring that schools understand the […]

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  • ‘TWISTING TITLE IX’ WEEK/From the Archives: ‘New Federal Regulations Limit Due Process, Free Speech Rights on Campus’

    September 26, 2016

    EDITOR’S NOTE: To mark tomorrow’s release of FIRE Executive Director Robert Shibley’s Twisting Title IX, we’re featuring a series of Title IX articles this week to get you caught up on how this law is being used in unconstitutional and unlawful ways to threaten civil rights on campus. We’ll revisit some of our most informative past stories and get you up-to-date on the latest happenings with this decades-old law, which has recently been interpreted by the Departments of Education and Justice to apply in ways that increasingly undermine free speech and due process on campus. Today, we’re taking another look […]

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  • Oklahoma Wesleyan Joins Lawsuit Challenging 2011 ‘Dear Colleague’ Letter

    August 15, 2016

    Today, Oklahoma Wesleyan University (OKWU) became the first and only institution of higher education to challenge in court a 2011 mandate from the Department of Education’s Office for Civil Rights (OCR) that colleges and universities adjudicate sexual misconduct allegations using the low, “preponderance of the evidence” standard. This mandate for institutions governed by Title IX—all but a few colleges and universities nationwide, whether private or public—was first announced in OCR’s April 4, 2011 “Dear Colleague” letter (DCL). OKWU is joining a FIRE-sponsored federal lawsuit originally filed in June, which seeks to invalidate this provision of the DCL on the grounds […]

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  • Former UVA Student Challenges Unlawful Sexual Misconduct Mandate in Federal Lawsuit

    June 16, 2016

    WASHINGTON, June 16, 2016—A former University of Virginia School of Law student filed a federal lawsuit today challenging the Department of Education’s unlawful mandate that colleges abandon due process protections and try sexual misconduct cases using the lowest standard of evidence. The Foundation for Individual Rights in Education (FIRE) is sponsoring the lawsuit. FIRE and other civil liberties advocates have continually objected to the Department of Education’s “preponderance of the evidence” mandate since its Office for Civil Rights (OCR) announced the requirement in a 2011 “Dear Colleague” letter (DCL). Advocates have warned that the letter diminishes accused students’ due process […]

    » Read More

  • 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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