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FIRE Statement on Nomination Hearings for Secretary of Education

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit student rights organization dedicated to defending student and faculty rights on our nation’s campuses. Since 1999, FIRE has effectively and decisively vindicated the fundamental rights of hundreds of thousands of students and faculty members while simultaneously reaching millions on and off campus through education and outreach.

FIRE has received donations from the Dick and Betsy DeVos Family Foundation. Following Betsy DeVos’ nomination for Secretary of Education, some have suggested that this support for FIRE’s work in defense of campus rights is troubling. This is disappointing. Protecting civil liberties on campus is not, and must not become, a partisan issue.

While FIRE is best known for our work defending free speech, we have also advocated for fair procedures in campus judicial proceedings throughout our nearly two-decade history. While the national focus in recent years has been on sexual misconduct cases specifically, FIRE has long advocated for due process rights in campus proceedings more generally. As FIRE President and CEO Greg Lukianoff has written: “Due process exists not simply to protect the innocent, but also to accurately identify the guilty. Once too much subjectivity is allowed into the system, guilt or innocence determinations are unduly influenced by less rational factors, like whether or not the administrator in charge likes or dislikes the accused.”

The basic protections for which FIRE argues—the right to the active participation of counsel; the right to see the evidence in one’s case and to meaningfully question witnesses; and the right to an impartial tribunal, among others—benefit all parties and do not impede the pursuit of justice. Outside of the campus context, nobody would argue that reducing due process protections, including the burden of proof, is necessary to secure a just outcome.  

Joined by voices and organizations from across the political spectrum, FIRE has criticized the 2011 “Dear Colleague” letter issued by the Department of Education’s Office for Civil Rights for the threat it poses to free speech and due process on campus. Among other mandates, the 2011 letter requires colleges to adjudicate sexual misconduct allegations using the weak “preponderance of the evidence” standard. Proponents argue that the standard is appropriate due to its use in civil court. But fundamental fairness requires that this low burden of proof—which requires that the fact-finder be only 50.01% certain that the accused is guilty—be offset by significant procedural safeguards that are simply absent in the collegiate setting.

Given this and other shortcomings, FIRE harbors serious concerns about campus adjudications of sexual assault allegations. As the Rape, Abuse & Incest National Network (RAINN) told the White House Task Force to Protect Students from Sexual Assault in 2014, campus judiciaries “offer the worst of both worlds: they lack protections for the accused while often tormenting victims.” If colleges are to continue to serve as investigators and fact-finders in cases concerning allegations of felonious behavior, they must begin to incorporate meaningful due process protections.

At present, FIRE is sponsoring litigation that challenges the legality of the 2011 “Dear Colleague” letter under the Administrative Procedure Act (APA). The APA is an essential check on bureaucratic overreach, prohibiting unelected political appointees from enacting new regulations without providing notice to the public and an opportunity for comment. If federal agencies are allowed to impose substantive new mandates without abiding by the APA’s notice-and-comment requirement, American citizens and institutions will be subject to the whims of each new administration’s appointed officials. FIRE’s lawsuit aims to protect the nation from a range of unlawfully imposed mandates by deterring future administrative overreach in the area of student and faculty rights.

Again: The protection of civil liberties on campus is not a partisan issue. For our nation’s future, it must not be allowed to become one. As always, FIRE stands ready to work with students, faculty, administrators, citizens, elected officials, nonprofit organizations, and the Department of Education to protect student and faculty rights.

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