A lawsuit was filed yesterday challenging a 2011 “Dear Colleague” letter in which the Education Department’s Office for Civil Rights ordered many of the nation’s colleges and universities to change the burden of proof they used in disciplinary proceedings. The letter decreed this change without even going through notice and comment, which the lawsuit says violated the Administrative Procedure Act (APA). The changed burden of proof only applies to those accused of sexual harassment or assault.
This letter has also been criticized by many law professors, lawyers, civil-libertarians, and journalists. I previously argued that this letter violated the APA and was not entitled to Chevron deference.
As the Washington Post notes, the lawsuit, Doe v. Lhamon, is sponsored by the Foundation for Individual Rights in Education,
which along with some other civil liberties advocates has long objected to a 2011 “Dear Colleague” letter from the Office for Civil Rights . . .The plaintiff, who chose to remain anonymous, was a law student at the University of Virginia who was found responsible for sexual misconduct in a campus adjudication. The retired judge who issued the sanction noted that it was a very difficult case and said that because she was required to use the “preponderance of evidence” standard, rather than the “clear and convincing” standard U-Va. had used in the past, she concluded that John Doe should be held responsible.
The College Fix notes that the judge called the case “very close” and “very difficult”; the complainant “made the accusation a year and a half after” her encounter with the accused, alleging she was too intoxicated to give “effective consent.” The accused was only held responsible because of the low burden of proof dictated by the Office for Civil Rights (OCR), which overturned the higher clear-and-convincing evidence standard previously used by the University of Virginia.
OCR, where I used to work, demands that colleges not use a standard of proof higher than the preponderance standard, which requires only a 50.1% likelihood of guilt. It rejects the clear-and-convincing evidence standard (roughly 75% likelihood of guilt), which was once the norm. As a Yale Law Journal article once noted, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987)).
In response to OCR’s April 4, 2011 “Dear Colleague” letter, the University of Virginia and other schools such as Princeton and Harvard Law School “dumped their ‘clear and convincing’ evidence standards,” notes The College Fix.
The change in the burden of proof, coupled with colleges’ fear of devastatingly costly, reputation-damaging investigations by OCR, has often stacked the deck against accused students, and resulted in increasing numbers of students being expelled who once would have been found not guilty: see examples given here, here, here, here, here, here, and here at Minding the Campus.
Ironically, while the Obama administration pressures colleges to expel more people who might be innocent in its 2011 Dear Colleague Letter, it is simultaneously seeking to block (in the name of racial equity) many K-12 suspensions and expulsions of students who constantly disrupt class, and it seeks to eventually eliminate all preschool suspensions and expulsions of even violent and disturbed youngsters who attack their classmates, without any statutory basis for doing so.
This 2011 Dear Colleague letter was far from the worst thing the Education Department has done during the Obama administration. The Obama administration has promoted campus speech codes that take away freedom of speech: It demanded censorship at the University of New Mexico and University of Montana in letters from political appointees in the Justice and Education Departments. It has “discouraged” cross-examination, even though the Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth.”
In its investigations of certain colleges, the Education Department has demanded that they reopen previously dismissed allegations, a demand smacking of double jeopardy, and that colleges exclude certain types of relevant evidence that can help show an accused’s innocence, drawing criticism from law professor David Bernstein. Last year, it demanded that a college provide “remedies,” such as academic assistance or counseling, for a student that even OCR conceded had likely made a false allegation.
The Obama administration has flooded the nation’s public and private schools with new rules and regulations, without even going through the notice-and-comment rulemaking process mandated by the Administrative Procedure Act. Many of those rules would have been an even riper and easier target for a lawsuit than this one, which was filed in the District of Columbia, where judges have recently been fairly deferential to the actions of federal agencies.