Will Creeley, Foundation for Individual Rights in Education
April 4, 2012
One year after issuing controversial federal regulations that require colleges and universities to reduce student due process rights, the United States Department of Education's Office for Civil Rights (OCR) remains silent in the face of criticism from students, professors, alumni, university administrators, higher education lawyers, civil rights advocates, and the press. Today, the Foundation for Individual Rights in Education (FIRE) renews its call for the revocation of the new mandates imposed by the letter.
OCR is the federal agency tasked with enforcing federal civil rights laws, including TitleIX, in educational programs and institutions that receive federal funding. Under the new regulations announced in an April 4, 2011, "Dear Colleague" letter (DCL) from Assistant Secretary for Civil Rights Russlynn Ali, colleges and universities receiving federal funding must employ a "preponderance of the evidence" standard—a 50.01%, "more likely than not" evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. Institutions that do not comply face federal investigation and the loss of federal funding.
"OCR's Dear Colleague letter is making a bad situation for free speech and due process on campus even worse—and incredibly, the agency has thus far refused to even respond to the issues raised by students, faculty, alumni, and concerned citizens across the nation," said FIRE President Greg Lukianoff. "FIRE is determined to get an answer from the Department of Education, and we will keep fighting to make sure that the values of free speech and due process are properly respected on campus."
The DCL marks the first time OCR has mandated that all colleges and universities employ the preponderance of the evidence standard, our judiciary's lowest evidentiary standard. Indeed, in contrast to the new requirement, OCR's 2001 Guidance granted schools considerable autonomy in determining the particular protocols to be utilized on their campuses, noting that procedures will vary from school to school according to "differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience."
FIRE criticized the preponderance of the evidence requirement in a May 5, 2011, letter to OCR. The American Association of University Professors (AAUP) echoed FIRE's concerns about the low standard in two separate letters: the first from the Department of Academic Freedom, Tenure, and Governance, and the second from the Committee on Women in the Academic Profession, cosigned by AAUP President Cary Nelson.
The lower standard of evidence has also been criticized by students like Cynthia Bell of Seton Hall University, writing in the Philadelphia Inquirer; an anonymous student conduct administrator, writing for Inside Higher Ed; prominent higher education attorneys like Robert Smith of the law firm LeClairRyan, writing for RealClearPolitics; former OCR attorneys like Hans Bader, writing for the Washington Examiner; and commentators including Michael Barone, Peter Berkowitz, Cathy Young, Christina Hoff Sommers, Wendy Kaminer, Ilya Shapiro and more. Criticism of the new mandate has appeared in The Wall Street Journal, the New York Post, The Atlantic, The Huffington Post, The Christian Science Monitor, The Chronicle of Higher Education, and other publications across the country in the past year.
FIRE's research indicates that prior to the DCL, our nation's top universities used standards of evidence higher than the weak preponderance of the evidence standard, including nine of the top ten schools in the 2011 U.S. News & World Report rankings. Following OCR's new mandate, schools like Harvard University, Princeton University, Yale University, Columbia University, the University of Chicago, Stanford University, and the University of Notre Dame must all reduce the due process protections previously afforded to students accused of one of society's most heinous crimes.
The DCL further threatens due process by mandating that if a university judicial process allows the accused student to appeal a verdict, it must afford the accusing student the right to appeal as well. This requirement means that a student found innocent in a hearing may be retried, even if the charges against him or her have already been proven baseless, and thus violates standards of fundamental fairness enshrined in the Bill of Rights' prohibition against "double jeopardy" in criminal trials.
FIRE's May 5, 2011, letter criticized OCR for failing to explicitly remind colleges and universities of the importance of protecting students' right to free expression, in stark contrast to previous OCR guidance. Indeed, FIRE's concerns about the threat to due process rights presented by the DCL's mandates are exacerbated by the fact that many colleges and universities continue to maintain overly broad harassment codes that prohibit protected speech. FIRE's most recent survey of university policies impacting student speech, Spotlight on Speech Codes 2012: The State of Free Speech on Our Nation's Campuses, revealed that 65 percent of the 392 colleges and universities analyzed maintain policies that seriously infringe upon students' free speech rights. For example, Jackson State University in Mississippi prohibits as harassment "verbally abusive language by any person on University-owned or controlled property."
In an open letter sent in January, FIRE and ten other organizations urged OCR to defend free speech on campus by ending the lingering confusion surrounding the definition of student harassment. The open letter's call for clarity was echoed in an op-ed by Lukianoff published in The Washington Post.
In the coming weeks, FIRE will again ask OCR to revisit the controversial requirements announced in the DCL and to answer the concerns raised by FIRE and many others.
"In the 2011 letter, OCR mandated changes that reduce due process rights for students and faculty across the country without even submitting these new regulations for formal notice and comment," Will Creeley, FIRE's Director of Legal and Public Advocacy, said. "OCR's regrettable decision to forgo discussion of these controversial new rules makes the agency's refusal to answer the concerns of civil liberties groups like FIRE all the more disappointing. FIRE again asks Assistant Secretary Ali to account for the problems in the 2011 letter, and to work directly with higher education stakeholders to ensure that sexual harassment and assault are properly addressed without sacrificing student rights."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America are described at thefire.org.