Today, Oklahoma Wesleyan University (OKWU) became the first and only institution of higher education to challenge in court a 2011 mandate from the Department of Education’s Office for Civil Rights (OCR) that colleges and universities adjudicate sexual misconduct allegations using the low, “preponderance of the evidence” standard.
This mandate for institutions governed by Title IX—all but a few colleges and universities nationwide, whether private or public—was first announced in OCR’s April 4, 2011 “Dear Colleague” letter (DCL). OKWU is joining a FIRE-sponsored federal lawsuit originally filed in June, which seeks to invalidate this provision of the DCL on the grounds that it was not offered for public notice and comment as required by the Administrative Procedure Act (APA). This requirement ensures that government agencies do not have unfettered discretion to create new laws—a function normally performed by Congress.
OCR’s disregard for its legal obligations under the APA deprived institutions like OKWU of the opportunity to provide feedback regarding the efficacy and potential repercussions of the mandate before it was imposed on them, and ultimately of the ability to decide for themselves how best to protect the rights of their students.
FIRE has spoken with numerous campus administrators nationwide who express frustration that the DCL has impeded their ability to afford accused students due process. OKWU, however, has distinguished itself by being the only university in the nation willing to stand up in defense of institutional autonomy and the principles of fundamental fairness and due process.
Justin Dillon and Chris Muha of the Washington, D.C. law firm KaiserDillon PLLC are representing OKWU, as well as the lawsuit’s first plaintiff.