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FIRE to Dept. of Ed: Campus Title IX proceedings must be fair

Yesterday, FIRE testified at the Department of Education’s hearing on regulatory reform, which sought public input on “regulations that may be appropriate for repeal, replacement, or modification.”

In light of Secretary Betsy DeVos’ recent announcement that the department will revisit its approach to enforcing Title IX of the Education Amendments of 1972, FIRE took yet another opportunity to ask the department to prioritize fair procedures and due process for both alleged victims of sexual misconduct and those accused of it.

FIRE has been critical of the previous administration’s Title IX guidance documents, which hindered its laudable efforts to combat campus sexual assault by forgoing fundamentally fair procedures for accused students. As I told the department yesterday: “These obligations — providing effective responses to sexual misconduct, and providing due process — are sometimes presented as being in conflict with one another. But the truth is that these obligations need not be in tension.”

Below is the full text of FIRE’s comments, delivered yesterday afternoon at the department’s headquarters in Washington, D.C.

Good afternoon.

My name is Alex Morey and I am an attorney with the Foundation for Individual Rights in Education, or, as we are better-known, FIRE.

FIRE is a nonpartisan, nonprofit organization dedicated to defending core constitutional rights on our nation’s university campuses. These rights include freedom of speech and freedom of assembly, legal equality, due process, religious liberty, and sanctity of conscience—the essential qualities of individual liberty and dignity. Every day, FIRE receives requests for assistance from students and professors all over the country who find themselves victims of administrative censorship or unjust punishment.

I’m here today to thank you for soliciting input on how the Department might revise the rules, regulations, and guidance documents under its purview.

One of the core constitutional rights that FIRE defends is due process. Sexual assault on America's college campuses is a problem that must be addressed — and there is no doubt that universities are both morally and legally obligated to respond. Public universities are also bound by the Constitution to provide meaningful due process to students accused of sexual assault. These obligations — providing effective responses to sexual misconduct, and providing due process — are sometimes presented as being in conflict with one another. But the truth is that these obligations need not be in tension.

Nevertheless, until the recent rescission of the April 4, 2011 “Dear Colleague” letter and the accompanying 2014 guidance document, the Department of Education’s approach to enforcing Title IX compromised the fundamental fairness of campus procedures in the name of addressing campus sexual misconduct. This undermined the credibility of those laudable efforts.

As we told the White House in 2014, the stakes are extremely high for both the student complainant and the accused student in campus disciplinary proceedings, and it is essential that neither student’s ability to receive an education is curtailed unjustly. When a university dismisses an accusation of a sexual assault without adequate investigation, it has both broken the law and failed to fulfill its moral duty. Recent headlines indicate that far too many schools have taken this path. Similarly, when a college expels an accused student after a hearing that includes few, if any, meaningful procedural safeguards, it too has failed to fulfill its legal and moral obligations. Far too many schools have taken this path as well.

During her recent speech announcing that the Department would be revisiting its approach on this issue, Secretary DeVos stated, “Every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined.” Nearly three quarters of Americans agreed with her statement, according to a recent survey conducted by Rasmussen. The public will not stand for one-sided approaches to this issue any longer.

So today, we are urging the Department to stay true to its word. When notice and comment is soon initiated, we hope that the Department hears the voices of all who are impacted by this issue. Victims of sexual assault need the Department to remain vigilant in enforcing Title IX. They need the Department to continue to assist colleges and universities in delivering essential resources to complainants, so that they can continue their studies. At the same time, accused students need the Department to promote frameworks addressing this issue that are fundamentally fair and don’t undermine the credibility of the entire system. The warnings of civil libertarians must not go unheeded again. We also urge the Department to invite experts in other fields — medical professionals, legal professionals, and law enforcement, to participate in this process. They, like many others, undoubtedly have many valuable contributions to offer. We firmly believe that the best policies are crafted when all voices are given a seat at the table.

FIRE is looking forward to participating in the notice and comment process once it has been formally initiated. We appreciate this opportunity today, to share with you our perspective on this critically important issue.

Thank you.

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