A former University of Virginia School of Law student has filed a federal lawsuit that challenges the U.S. Department of Education’s unlawful mandate that colleges abandon due process procedures and try sexual misconduct incidents with the lowest standard of evidence. The Foundation for Individual Rights in Education (FIRE), a civil liberties organization, is sponsoring the lawsuit.
FIRE, alongside other civil liberties advocates, has persistently objected to what is refers to as the Department of Education’s “preponderance of the evidence” policy. The policy was announced by the Office for Civil Rights (OCR) in 2011 that allows prosecutors to use the lowest standard of evidence in pursuing sexual misconduct cases. Civil liberties advocates warn that the policy diminishes accused students’ due process process rights.
“Following the law isn’t optional, and discontent with the 2011 ‘Dear Colleague’ letter is widespread and well-documented,” said FIRE Executive Director Robert Shibley. “Hardly a week goes by without new headlines pointing to the failure of the status quo on campus. OCR has acted as though decreasing due process rights will increase justice. In fact, the opposite is true. Real people’s lives are being irreparably harmed.”
The group has also accused the policy of violating the Administrative Procedure Act (APA), which governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA requires federal agencies like OCR, which oversees Title IX and other federal anti-discrimination laws, to notify the public of proposed rules and solicit feedback before imposing new requirements on regulated entities like colleges and universities. FIRE claims that OCR did not provide sufficient time before notifying agencies about the policy changes, and it did not collect public feedback.
In January 2016, the University of Virginia found that a student was unable to give “effective consent” due to alcohol consumption in a sexual encounter that occurred in 2013. The plaintiff, John Doe, maintains that he received consent and that the other student did not show signs of intoxication at any time before, during, or after the encounter.
The retired judge who served as a fact-finder in Doe’s case, which he described as “very difficult,” said that the woman was required by OCR to use “the weakest standard of proof.” Before 2011, UVA had a policy of using higher-standard evidence, which presented “clear and conniving” proof before moving forward on a prosecution. Groups like FIRE are urging that more compelling evidence needs to be found before a student can be charged.
“Campus sexual assault is a serious problem, but OCR doesn’t get to break the law in order to solve it,” said Justin Dillon of a Washington, D.C. law firm. “It needs to do what federal law requires—tell the American people what it wants to accomplish, ask them for their feedback, and only then make a decision. Sure, that might take longer than OCR wants, but the Founders picked democracy because it was the fairest form of government, not because it was the most efficient. Democracy is hard work.” The suit has invited criticism from campus activists and women’s organizations.
For interested readers, more information about FIRE’s efforts to fight for what it views as a campaign for liberty on college campuses nationwide can be found online.