FIRE Aims to Challenge Legality of Federal Sexual Misconduct Mandate

WASHINGTON, April 4, 2016—Five years ago today, the Department of Education’s Office for Civil Rights (OCR) announced sweeping new requirements for colleges and universities adjudicating allegations of sexual misconduct. By unilaterally issuing these binding mandates via a controversial “Dear Colleague” letter (DCL), OCR ignored its obligation under federal law to notify the public of the proposed changes and solicit feedback.

To correct this error, and to begin to fix a broken system of campus sexual assault adjudication that regularly fails all involved, the Foundation for Individual Rights in Education (FIRE) seeks a student or institution to challenge OCR’s abuse of power. FIRE has made arrangements to secure legal counsel for a student or institution harmed by OCR’s mandates and in a position to challenge the agency’s violation of the Administrative Procedure Act (APA). In keeping with FIRE’s charitable mission to advance the public interest, representation will be provided at no cost to the harmed party.

“In the five years since its issuance, OCR has acted as though the 2011 Dear Colleague letter is binding law—but it isn’t,” said FIRE Executive Director Robert Shibley. “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.”

The DCL requires that schools use the low “preponderance of the evidence” standard of proof (i.e., that they find an accused student guilty with just 50.01 percent certainty) when adjudicating claims of sexual assault and sexual harassment. The DCL’s requirement that colleges use this standard—found nowhere in Title IX or its implementing regulations, and specified before 2011 only in letters between OCR and individual schools—effectively creates a new substantive rule for institutions to follow.

The APA requires federal agencies implementing new substantive rules to first offer those rules for public notice and comment, so that affected parties may provide feedback before they are adopted. The U.S. Court of Appeals for the D.C. Circuit, before which claims under the APA are often adjudicated, has held that “[a] rule which is subject to the APA’s procedural requirements, but was adopted without them, is invalid.” The APA exempts from its notice-and-comment requirement “interpretative rules”—those which merely interpret existing statutes or regulations. But after five years, OCR has repeatedly failed to identify a legal provision that requires institutions nationwide to use the “preponderance” standard. Accordingly, OCR’s enforcement of this mandate violates the APA.

“Scores of students—both alleged victims and accused students—have sued their institutions after suffering under the faulty systems that OCR has effectively crafted through the DCL,” said Susan Kruth, a FIRE senior program officer for legal and public advocacy. “Those who will be affected by new rules must be given the opportunity to comment on their development. That’s the best way to create a system through which campus sexual assault allegations will be effectively and fairly addressed.”

Before that can happen, OCR must rescind the DCL’s mandates and subject them to public notice and comment as required by the APA. Since it has not done so voluntarily despite a substantial public outcry, the time has come to hold the agency accountable for its unlawful actions. A student or institution harmed by the DCL’s mandates can do this by filing a lawsuit against the agency.

FIRE invites interested students and institutions to contact us at APA@thefire.org. We stand ready to take action with the aid of attorneys from the Washington, D.C., law firm of Kaiser, LeGrand & Dillon PLLC, with whom we have partnered on this case and who are widely recognized as nationwide leaders in handling cases of campus sexual misconduct.

FIRE is a nonpartisan, 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, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campus across America can be viewed at thefire.org.

CONTACT:

Katie Barrows, Communications Coordinator, FIRE: 215-717-3473; media@thefire.org