Campus Rights Group to Challenge Federal Sexual Assault Mandate
April 4, 2016
Colleges and universities may one day be freed from the requirement to adjudicate felonies, if this campus rights group gets its way.
The Foundation for Individual Rights in Education plans to officially challenge the Education Department’s mandate that schools adjudicate campus sexual assault. Currently, the agency’s Office for Civil Rights, through a 2011 “guidance” document — known as a “Dear Colleague” letter — requires schools to create pseudo-court systems to determine whether students have committed sexual assault.
FIRE is seeking “a student or institution to challenge OCR’s abuse of power” and has offered to pay the legal fees of whoever takes on this task.
“In the five years since its issuance, OCR has acted as though the 2011 Dear Colleague letter is binding law — but it isn’t,” FIRE’s Executive Director Robert Shibley wrote in a statement. “By circumventing federal law, OCR ignored all stakeholders: victims, the accused, civil liberties advocates, administrators, colleges, law enforcement and the general public. Real people’s lives are being irreparably harmed as a result. It’s time that OCR be held accountable.”
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The 2011 “Dear Colleague” letter requires schools to use a low “preponderance of evidence” standard when determining culpability in sexual assault cases. This standard of proof requires that campus administrators be only 50.01 percent convinced that the accused student committed an assault (meaning they can be 49.99 percent certain the accused did not).
And while this represents a substantive change from past policies allowing schools to use either the preponderance or the higher “clear and convincing” standard, the 2011 letter didn’t go through the notice-and-comment period necessary for such a change. This prompted Sen. James Lankford, R-Okla., to send OCR a letter demanding the office justify the overreach. OCR’s response to the senator failed to note any legal standing for the change.
In order to protect victims of sexual assault and the rights of accused students, OCR’s mandate must be rescinded. Colleges have been forced through threat of lost funding to adjudicate crimes. And due to the politics of the mandate, schools have taken the message that it is not the truth that OCR is interested in, but scalps. This has led to more than 70 accused students suing their universities for a lack of due process and bias against them.
That’s just the 70-plus lawsuits we know about. Unlike Title IX (the anti-sex discrimination statute that has been expanded to include sexual assault adjudication) complaints, there isn’t a simple database for collecting all of the lawsuits from accused students. This also just includes the students who can afford to sue their universities. Countless others have been wrongly expelled but are unable to afford justice.
FIRE’s offer is the strongest attempt yet at overturning OCR’s mandate and restoring fairness and sanity on college campuses.