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FIRE-backed lawsuit challenging Department of Education’s unlawful Title IX mandate voluntarily withdrawn

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plaintiffs John Doe and Oklahoma Wesleyan University to ask a federal court to dismiss a lawsuit challenging the now-withdrawn mandate that colleges and universities use the low “preponderance of the evidence” standard of proof in all sexual misconduct cases.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 by the federal Administrative Procedure Act and was therefore unlawful.

The joint dismissal stipulation states that the Department of Education “will not rely on the withdrawn documents in its enforcement of Title IX.” It also includes the September withdrawal letter from Acting Assistant Secretary for Civil Rights Candice Jackson, which explained that the mandate in the 2011 “Dear Colleague” letter from the Department of Education “led to the deprivation of rights for many students — both accused students denied fair process and victims denied an adequate resolution of their complaints.”

Due process is in crisis on our nation’s college campuses, and with unwise and intrusive policies like those in the 2011 ‘Dear Colleague’ letter, the federal government had pushed colleges and universities to make the problem even worse,” said FIRE Executive Director Robert Shibley. “With the preponderance mandate — and now this lawsuit — out of the way, we look forward to working with all parties to ensure that the important fight to combat sexual misconduct on campus is not tainted by due process abuses.”

Justin Dillon and Christopher Muha of KaiserDillon PLLC represented the two plaintiffs: John Doe (a pseudonym), a former student at the University of Virginia School of Law punished under the low preponderance standard, and Oklahoma Wesleyan University, which did not wish to be forced to use the preponderance standard in its own campus proceedings.

“When we filed this case in 2016, we were prepared for a long fight to force the federal government to follow the law,” said Dillon. “I’m very gratified to see that the current administration, after reviewing our lawsuit, decided to do just that and withdraw the previous administration’s unlawful mandate.”

“Fairness and justice with regard to both society and our students have always been foundational principles of Oklahoma Wesleyan University,” said Everett Piper, president of Oklahoma Wesleyan University. “I know that many institutions opposed this unlawful exercise of federal power, but feared risking the ire of a powerful government agency. I am very glad that Oklahoma Wesleyan was able to take a stand on behalf of our fellow institutions of higher education as well as our nation’s students.”

The case is Doe v. Jackson et al. (originally Doe v. Lhamon et al.), 1:16-cv-01158-RC, and was filed in the U.S. District Court for the District of Columbia on June 16, 2016.

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.


Daniel Burnett, Communications Manager, FIRE: 215-717-3473;

Justin Dillon, Partner, KaiserDillon PLLC: 202-640-4427;

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