A civil liberties group is challenging the Department of Education’s 2011 decision to unilaterally re-write campus disciplinary procedures, imposing what amounts to a guilty-until-proven innocent standard for sexual misconduct cases and paving the way for the increasingly illiberal campus sex bureaucracy that is expanding at schools across the country. From the group’s website:
A former University of Virginia School of Law student filed a federal lawsuit today challenging the Department of Education’s unlawful mandate that colleges abandon due process protections and try sexual misconduct cases using the lowest standard of evidence. The Foundation for Individual Rights in Education (FIRE) is sponsoring the lawsuit.
FIRE and other civil liberties advocates have continually objected to the Department of Education’s “preponderance of the evidence” mandate since its Office for Civil Rights (OCR) announced the requirement in a 2011 “Dear Colleague” letter (DCL). Advocates have warned that the letter diminishes accused students’ due process rights and violates the Administrative Procedure Act (APA).
It’s regrettable that it had to come to this. It would have been better if the Office for Civil Rights in Education (the zealous and highly ideological government agency responsible for the new rules) had recognized the limits of its authority and refrained from such draconian measures. It would have been better if higher-ups in the Obama administration had listened to concerns articulated by groups like FIRE, the Harvard Law School faculty, and the American Association of University Professors, and leaned on the OCR to dial back its campaign. And barring that, it would have been better if Congress, after seeing that an executive agency had gone rogue, had intervened with legislation to straighten out the situation.
But, sadly, the issue of campus sexual assault is so polarized and highly charged that otherwise-reasonable people seem unable to think clearly. It seems unlikely that any of the Democratic branches will scale back the OCR mandate anytime soon (including in a Hillary Clinton administration eager to prove its left-wing bona fides to the campus left). So here’s hoping that the judiciary intervenes and tells the government that it may not force campuses to impose a police state in the name of combating sexual misconduct.