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.”
“We are optimistic that Secretary Betsy DeVos, Acting Assistant Secretary Candice Jackson, and the new leadership at the Department of Education will use this pause in litigation to do what should have been done in 2011: solicit input from all stakeholders to carefully craft a policy that gives colleges and universities the tools to fight sexual misconduct without jettisoning fundamental due process protections,” said FIRE Executive Director Robert Shibley.
FIRE and many others have warned that the 2011 Dear Colleague letter’s mandate to use a low standard of certainty in sexual misconduct cases is not only bad policy, but also violated the Administrative Procedure Act because of the agency’s failure to subject the mandate to notice and comment. Attempts to reach out to the agency were largely rebuffed, forcing FIRE, student John Doe, and Oklahoma Wesleyan University to turn to litigation in 2016 in an attempt to correct this regulatory abuse.
Both John Doe, a former law student at the University of Virginia, and Oklahoma Wesleyan University are represented in this case by Justin Dillon and Chris Muha of the Washington, D.C. law firm KaiserDillon PLLC. The government’s motion, which plaintiffs do not oppose, is now before Judge Rudolph Contreras.
“I’m glad to see the government take this small but important step,” said Dillon. "I hope the next one will be to acknowledge that the Obama administration unlawfully promulgated the 2011 Dear Colleague letter. The government doesn’t get to make binding nationwide rules on the fly, no matter how noble it may think its motives are.”