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

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 to appeal the results of college disciplinary hearings, subjecting accused students to a form of "double jeopardy" not allowed in our nation's courts.

Deeply concerned about these threats to campus due process, the Foundation for Individual Rights in Education (FIRE) is urging citizens to contact their Senators and ask them to reject these provisions in the draft bill. FIRE holds no position on any other section of VAWA or the draft bill.

"These provisions are fatally flawed and do not belong in federal law," said FIRE President Greg Lukianoff. "Reducing protections for students who are accused of serious misconduct will not increase justice."

The draft bill provides that colleges adjudicating student complaints concerning sexual assault must "apply the standard of proof recommended by the most recent Guidance issued by the Department of Education's Office for Civil Rights" (OCR). OCR is the federal agency tasked with enforcing federal civil rights laws, including Title IX, in educational programs and institutions that receive federal funding. In an April 4, 2011, "Dear Colleague Letter" from Assistant Secretary for Civil Rights Russlynn Ali, OCR mandated that colleges and universities receiving federal funding must employ a preponderance of the evidence standard under Title IX when adjudicating allegations of sexual harassment and sexual assault—a requirement the 39-year-old law had not previously been interpreted to contain. OCR's new regulations have already coerced colleges and universities across the country to abandon their commitment to due process protections for students accused of sexual assault.

Supreme Court precedent argues strongly against using the preponderance of the evidence standard in campus hearings concerning allegations of sexual harassment or sexual violence. FIRE pointed out in an open letter to OCR on May 5, 2011, that preponderance of the evidence is our judiciary's lowest evidentiary standard and provides insufficient protection to students accused of serious misconduct. FIRE explained that lowering the burden of proof in sexual assault cases will reduce confidence in campus judiciary systems and inevitably result in more incorrect guilty verdicts. OCR has failed to respond to FIRE's letter or to two letters from the American Association of University Professors in defense of due process rights.

Codifying OCR's new requirement in VAWA would cement OCR's errors into federal law, ensuring further injustices like those suffered by University of North Dakota (UND) student Caleb Warner. Under the preponderance of the evidence standard, Warner was found guilty of sexual assault and banned from campus for three years. However, the same evidence led North Dakota law enforcement to charge Warner's accuser with making a false report to law enforcement—a charge for which she is still wanted by the police. After 18 months, UND finally re-examined Warner's case only after the university's injustice was exposed by FIRE. Earlier this month, FIRE announced that UND had vacated Warner's suspension.

The draft bill also provides that colleges must maintain "procedures for the accused and the victim [emphasis added] to appeal the results of the institutional disciplinary proceeding." The requirement contradicts the Fifth Amendment's prohibition on "double jeopardy," whereby someone accused of a crime cannot be tried again for the same charge once the original hearing has properly ended in either acquittal or conviction. For the same reasons of fundamental fairness that our criminal justice system does not allow the accused to face double jeopardy, Congress should not force college students to face a second hearing for the same charge. Further, allowing accusers to appeal a not-guilty finding amplifies the due process problems introduced by the preponderance of the evidence mandate.

These new provisions in the VAWA reauthorization draft bill stem from the draft's incorporation of elements of the Campus Sexual Violence Elimination (SaVE) Act. (Section 304 of the draft is titled "Campus SaVE Act.") The Campus SaVE Act, introduced in both the Senate and the House of Representatives, contains nearly identical requirements and similarly restricts fundamental due process rights. The proposed new rules dangerously tip the scales toward finding more innocent students guilty.

"Colleges have both a legal and a moral duty to address sexual assault on campus, but working to eliminate such crimes does not require colleges and universities to forsake fundamental student rights," Robert Shibley, FIRE's Senior Vice President, said. "FIRE asks Senator Leahy and his colleagues to retract these ill-advised provisions, lest the newest generation of college students learn the wrong lesson about the crucial importance of due process."

FIRE is a 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, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America are described at

TAKE ACTION: Contact your Senators and ask them not to co-sponsor or support Senator Leahy's bill so long as these proposed changes threaten fundamental due process rights on campus.

Robert Shibley, Senior Vice President, FIRE: 215-717-3473;

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