The complaint in the U.S. District Court for the District of Columbia alleges that the federal department’s Office for Civil Rights was advancing a laudable goal in an unlawful and unfair way: that its directive bypassed the normal procedure of notifying the public of proposed rules and seeking response before imposing new regulations, a violation of the Administrative Procedure Act.
The goal is to have a judge force the Department of Education to follow the law — which was designed to be a democratic check on federal agencies’ power, giving people a voice in bureaucratic decisions — if it wants to impose such a sweeping and important regulation, a lawyer in the case explained.
“Campus sexual assault is a serious problem,” said Justin Dillon, who with his colleague Chris Muha represent the plaintiff in a case sponsored by the Foundation for Individual Rights in Education (FIRE). “But OCR doesn’t get to break the law in order to solve it.
“It needs to do what federal law requires — tell the American people what it wants to accomplish, ask them for their feedback, and only then make a decision. Sure, that might take longer than OCR wants, but the Founders picked democracy because it was the fairest form of government, not because it was the most efficient. Democracy is hard work.”
There’s a lot at stake. The Obama administration has pushed colleges to do more, and respond more quickly, to allegations of rape and sexual assault, a move that was welcomed by many victims’ advocates who have complained for years that university officials are too apt to ignore these thorny and all-too-common cases.
But others countered that the administration had gone too far and has essentially forced colleges into the awkward position of creating makeshift trial courts to judge cases in ways that don’t protect the rights of the accused.
The pressure on universities is considerable. Not only are their students profoundly impacted by such cases, in life-changing ways, and not only are their campuses’ reputations at risk, but there is a massive financial stake as well, since federal funding is tied to compliance. The agency has a fast-growing list of institutions it is investigating.
“The change has been pretty seismic in how institutions are addressing this issue,” said Kai McGintee, an attorney who works as an independent investigator for Title IX cases. The federal Title IX law is designed to protect students from discrimination based on sex.
The lawsuit is sponsored by FIRE, which along with some other civil liberties advocates has long objected to a 2011 “Dear Colleague” letter from the Office for Civil Rights, which directed colleges to use a certain standard of evidence that was less stringent than many had been using in the past.
A spokeswoman for the Education Department pointed to recent testimony on the issue of campus sexual assault, including this 2014 testimony before a Senate committee by Assistant Secretary Catherine Lhamon of the Office for Civil Rights, who is named in the complaint:
When universities fail to respond adequately to campus sexual assault, they may be forcing the affected students to attend school in a sexually hostile environment. This environment deprives them of their freedom to go to class without being re-traumatized by a perpetrator sitting a few seats away, walk on campus without being harassed by a perpetrator’s friends, attend a party on-campus, or even feel safe in their own dorm rooms.And it can profoundly damage students’ physical and emotional well-being in ways that deprive them of the opportunity to obtain an education altogether.I am pleased to see that many colleges and universities are stepping up to the challenge of addressing the problem of sexual assault. For example, within months of the release of the Department of Education’s Office for Civil Rights 2011 Dear Colleague Letter on sexual violence, many colleges and universities revised their sexual violence policies and procedures consistent with our guidance. We applaud these schools for taking the initiative to keep their students safe without waiting for enforcement intervention from my office or from the Department of Justice.But some schools still are failing their students by responding inadequately to sexual assaults on campus. For those schools, my office and this Administration have made it clear that the time for delay is over. This Administration is committed to using all its tools to ensure that all schools comply with Title IX so campuses will be safer for students across the country.
Lhamon also said at the time that some colleges were discouraging students from filing sexual assault complaints, delaying investigations, failing to have clear policies and allowing students found to have assaulted others to remain in school. That is why they wrote the 2011 letter, she said.
The plaintiff, who is not identified in the court filing, 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.
“But for UVA’s mandated use of the preponderance standard,” the complaint claims, “Mr. Doe would not have been found responsible.”
John Doe does not ask, in this lawsuit, for the university’s finding to be overturned. The focus of the lawsuit is the larger issue. But it does seek “further and additional relief as this Court may deem just and proper,” and, Dillon noted, they certainly wouldn’t object if the court wanted to enter an order granting relief.
The complaint alleges that the Office for Civil Rights had launched a “blitzkrieg” with “equal parts zeal and hubris,” imposing its mandate rather than collaborating with colleges, students and others. By publicizing the list of schools under investigation and rapidly adding new ones, the complaint alleges, it left schools scrambling to comply and trampled students’ rights. Some, such as Princeton and Harvard’s law school, were warned that their use of the “clear and convincing” standard of evidence was improper and a violation of Title IX.
The list of institutions under investigation was 55 when the list was made public in spring 2014; there are now 192 schools on the list.
“OCR’s goal is laudable in the highest degree; its attempt to get there at any cost, disturbing to the same degree,” the complaint says. “OCR has taken a ‘shoot first, ask questions later’ approach, and it has managed to empty more than a few magazines before being challenged about whether it is even allowed to do so.”
Last March, the U-Va. law student was about to graduate and had a job lined up with a prominent firm in Washington when one of his classmates filed a sexual misconduct claim against him for an incident in August 2013.
According to the lawsuit, she said that because she had been drinking, she was not able to consent to sexual activity with him at the time. He responded that she did not appear intoxicated that night, let alone incapacitated.
But his degree, and his job, were suspended as the investigation went on for nearly a year.
Before 2011, U-Va. used the “clear and convincing evidence” standard, according to the complaint, citing a university explanation that that “means that the claim is highly probable and has produced a firm belief or conviction that the allegations in question are true,” and “proof that requires more than a preponderance of the evidence but less than proof beyond a reasonable doubt.'”
In January of this year, according to the complaint, “… the adjudicator sanctioned Mr. Doe to four months of counseling and a lifetime ban from all UVA property and activities. … That letter confirmed that ‘[f]irst and foremost’ in her rationale for finding Mr. Doe responsible ‘is the requirement that I use the preponderance of the evidence standard.'”
Anthony de Bruyn, a spokesman for U-Va., said that student privacy laws prohibit the university from commenting on the facts and circumstances of any particular case. He declined to comment further.
“We’re not alleging anti-male bias,” as some lawsuits by accused students have done, Dillon said. “It’s a technical suit,” which he described as: “You had to follow this law. You didn’t do it. Our guy was directly affected, because he was at a school that changed its policy after your illegal letter came out.”
More than 100 lawsuits have been filed by accused students who feel they have been put through kangaroo court, said Will Creeley, of FIRE. This is a different kind of case. “The Office for Civil Rights cannot ignore the folks who will be affected by their regulation, and that’s what happened here.”
“I think it’s a really strong case,” said Jacob Gersen, a professor at Harvard Law School. The question of whether the letter does impose new legal obligations is relatively clear, he said, “if you look at the older statements of law and older guidance from the agency.” In settlement agreements the agency cites the letter as a source of law, he said. Some portions, not all, of the letter the agency treats as absolutely binding, he said, and the ‘preponderance of evidence’ is one of them. “I know of no resolution with any school that did not require that standard. That simply was not true before.”
“…It was a very, very significant change for universities. It required extensive employees and bureaucracies to process,” for some 3,000 schools, with the explicit threat of termination of federal funds.
Kai McGintee said that while many people have questioned whether the Office for Civil Rights overstepped its authority with the letter, she thinks many feel the guidance is useful. “Over the last five years, institutions have changed their policies for the better,” she said. “Policies and processes at most institutions have been improved because of OCR’s guidance on this issue.”
Schools are taking the issue of sexual assault more seriously, she said, hiring people better trained to handle such cases, clarifying definitions of sexual assault and consent and incapacitation, ensuring students knew to whom they should report cases, adding more training for students and educators, reducing deterrents that had kept students from reporting. “Those are only good things.”
“Some institutions in individual cases have taken the guidance too far,” McGintee said, and that is reflected in a backlash in the courts from students who have been disciplined under Title IX.
She said universities are in a precarious position with such cases — most of which would never be criminally prosecuted because there isn’t enough evidence — balancing the rights of students and their obligations under Title IX, the increasing risk of litigation and the increasing national scrutiny.
The complaint cites the language from the 2011 letter:
… in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof.Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX.Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.
The directive is aggressively enforced, the complaint claims. “Schools are typically added to the list upon OCR’s receipt of just a single complaint, even before the accused school has been given a chance to respond to the allegation.”
Laura L. Dunn, a lawyer who is the founder and executive director of the advocacy group SurvJustice, said the case was stronger than others she has seen. But she said many people argue the Department does have the authority, that every piece of guidance does not have to go through the rule-making process. She also spoke to its importance.
The 2011 letter “was my personal moment of justice as a survivor,” she said, “that what happened to me would never happen to anyone else.” The letter, combined with people speaking out and sharing their names was the beginning of people knowing their rights could be enforced without a lawyer, by filing a Title IX complaint. “This lawsuit is striking at the heart of the student movement.”
“Following the law isn’t optional, and discontent with the 2011 ‘Dear Colleague’ letter is widespread and well-documented,” FIRE Executive Director Robert Shibley said in a statement. “Hardly a week goes by without new headlines pointing to the failure of the status quo on campus.
“OCR has acted as though decreasing due process rights will increase justice. In fact, the opposite is true. Real people’s lives are being irreparably harmed.”
Read the full complaint here:
This story has been updated to explain that the former U-Va. law student filed the suit using a pseudonym and is not identified in the court documents.