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 rights and violates the Administrative Procedure Act (APA).
“Following the law isn’t optional, and discontent with the 2011 ‘Dear Colleague’ letter is widespread and well-documented,” said FIRE Executive Director Robert Shibley. “Hardly a week goes by without new headlines pointing to the failure of the status quo on campus. OCR has acted as though decreasing due process rights will increase justice. In fact, the opposite is true. Real people’s lives are being irreparably harmed.”
The APA requires agencies like OCR, which enforces Title IX and other federal anti-discrimination laws, to notify the public of proposed rules and solicit feedback before imposing new obligations on regulated entities, like colleges and universities. OCR did not fulfill this obligation before issuing the DCL.
In January 2016, the University of Virginia found that, due to alcohol consumption, a student was unable to give “effective consent” for a 2013 sexual encounter with plaintiff John Doe. Doe maintained that he received effective consent and that the other student did not show signs of intoxication at any time before, during, or after the encounter that night, much less signs of incapacitation.
The retired judge who served as the fact-finder called Doe’s a “very close” and “very difficult case” and repeatedly emphasized that she was required by OCR to use “the weakest standard of proof.” Prior to the 2011 DCL, UVA used the higher, “clear and convincing” standard of proof. The judge said the new, lower standard was the “[f]irst and foremost” factor in her finding.
“Campus sexual assault is a serious problem, but OCR doesn’t get to break the law in order to solve it,” said Justin Dillon of the Washington, D.C. law firm KaiserDillon PLLC. “It needs to do what federal law requires—tell the American people what it wants to accomplish, ask them for their feedback, and only then make a decision. Sure, that might take longer than OCR wants, but the Founders picked democracy because it was the fairest form of government, not because it was the most efficient. Democracy is hard work.”
Dillon and his colleague Chris Muha represent Doe in this suit.
FIRE is a nonpartisan, nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campus across America can be viewed at thefire.org.
Katie Barrows, Communications Coordinator, FIRE: 215-717-3473; firstname.lastname@example.org