Contact: Teri Stoddard
Former Federal Attorney Calls Dept. of Education Sex Directive ‘Unlawful’
WASHINGTON/ October 29 — A former federal attorney has accused the U.S. Department of Education (DED) Sexual Assault directive as being unlawful and unconstitutional. Civil rights attorney Hans Bader notes the Department’s sexual assault order “illegally legislated through administrative fiat and undermined due-process safeguards.”
The new directive not only overturns decades of campus procedures for dealing with claims of sexual impropriety, but contradicts numerous decisions by the U.S. Supreme Court, Bader asserts. Bader’s legal analysis, Education Dept. Unlawfully Changes Burden of Proof in College Sexual Harassment Cases, can be viewed here: http://www.cotwa.info/2012/09/univ-of-north-carolina-rides-roughshod.html
Under the mandate, sometimes referred to as a “Dear Colleague Letter,” all colleges that receive federal funding must weaken their due process protections for any student charged with sexual impropriety. Universities must now judge the accused according to the lowest standard of evidence in American law – preponderance of evidence – or risk losing its federal funding.
In Ohio, Xavier University basketball star Dezmine Wells was recently expelled under the new standard, despite the fact that a local prosecutor who investigated the case called it one that “wasn’t even close.” The grand jury agreed with the prosecutor’s conclusion, but Wells was still banned from the school, with Xavier U. citing the federal directive as the reason.
“The Department of Education’s policy places the burden of proof on the accused and diminishes the presumption of innocence,” notes SAVE spokesman Steve Blake. “The DED directive turns institutions of higher learning into modern day Star Chambers in which conviction becomes nearly a foregone conclusion.”
The Sexual Assault Directive has been strongly criticized in over 80 editorials: http://www.saveservices.org/camp/ded-directive/ded-editorials/
Cornell law professor Cynthia Dawson notes the federal mandate is “not an administrative regulation, has not been subjected to notice and comment, and thus does not have the status of law.”
For more information, see SAVE’s Special Report, “An Assault on Our Civil Rights:” http://www.saveservices.org/wp-content/uploads/SAVE-Assault-Civil-Rights.pdf
Stop Abusive and Violent Environments is a victim-advocacy organization working for evidence-based solutions to partner violence and sexual assault: www.saveservices.org