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 were required to 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 required 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 failed to recognize that truly harassing conduct (as defined by the law) is distinct from protected speech. Institutions that did not comply with OCR’s new regulations faced federal investigation and a potential loss of federal funding.
Over the next six years, FIRE sent letters to OCR and to universities, wrote countless articles explaining the risk of erroneous guilty findings, provided congressional testimony on the issue, and even sponsored a federal lawsuit arguing that the mandate was unlawful under the Administrative Procedure Act. Finally, on September 22, 2017, the Office for Civil Rights issued a new “Dear Colleague” letter rescinding the 2011 letter.
On September 22, 2017, the Office for Civil Rights issued a new “Dear Colleague” letter rescinding the 2011 letter and related 2014 guidance. On November 29, 2018, the Department of Education published in the Federal Register proposed regulations to replace the rescinded documents and solicited public comment on them. On May 6, 2020, the Department finalized these regulations largely as proposed, including several provisions guaranteeing respondents important procedural safeguards.