Incredibly, Not A Single University Has Challenged This On Their Own

FIRE is looking for a client (University or aggrieved student) whom it can help sue the Department of Education over their sexual misconduct guidance

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.

Here is what is amazing to me:  Not a single university has challenged this rule, even though trashes the due process rights of is male students.  These same universities had no problem defying the law on things like ROTC and army recruiting (which represent mostly voluntary enticements of their students) but have rolled over and played dead over this much more direct threat to their students' well-being.

  • Jim Collins

    The reason that no Universities have challenged this is either they see nothing wrong here or they are afraid of the backlash from society, including their own students and faculty.

  • Matthew Slyfield

    I have a slightly different take. I think that they actively support this and would have gone that far if not farther on their own, but for fear of legal backlash. They believe that the support from DOE and DOJ (yes, the DOJ has their fingers in this too) will shield them from the repercussions.

  • DaveK

    Why on earth should the Universities fight the program? It means that the bureaucracy can grow even more, and for career bureaucrats, their careers are even more safely entrenched. Any time a choice involves more opportunities for "graft" (not just money, by the way), you can bet that the bureaucrats will take that path.

  • SamWah

    Universities are for this because they are leftist institutions.

  • Bruce Zeuli

    The "Dear Colleague Letter" resembles various clean water enforcement letters from the EPA in that the government agency plays both sides of their arguments. In communications with those they seek to regulate, the agency purports these communications as having the force of law. Yet in court (see Sackett vs. EPA) these same Agencies claim the letters are only informational and that the recipients are free to do as they choose. This is of course the purpose of issuing such directives. They have the force of law in 99% of the cases and even when challenged successfully in court the ruling is applied narrowly.

  • Mercury

    I pity the fool who has a white, liberal arts-major son.

    Still, I have faith in the power of the marketplace. The college/university system will lose this war.

    If you are 19yrs old do you really need to shell out $60k a year to get science/tech qualifications and meet girls? I don't think so. What else do private colleges offer these days of any real value?