FIRE: New Federal Regulations Limit Due Process, Free Speech Rights on Campus

May 5, 2011

WASHINGTON, May 5, 2011In response to new federal regulations announced last month that require colleges and universities to dramatically reduce students’ due process rights, the Foundation for Individual Rights in Education (FIRE) today sent an open letter to the United States Department of Education’s Office for Civil Rights (OCR) sharply criticizing the agency’s new requirements. Under the new regulations, announced in an April 4, 2011, letter from Assistant Secretary for Civil Rights Russlynn Ali, colleges and universities receiving federal funding must employ a "preponderance of the evidence" standarda 50.01%, "more likely than not" evidentiary burdenwhen adjudicating student complaints concerning sexual harassment or sexual violence. Institutions that do not comply face federal investigation and the loss of federal funding.

"The Office for Civil Rights’ unilateral revision of campus codes across the country is unquestionably unjust. Students accused of serious crimes like rape should not be tried under the same standard of proof used for a parking ticket," said FIRE President Greg Lukianoff. "OCR is proceeding from the fallacy that reducing protections for the accused will somehow increase justice. This is a dangerous and wrongheaded idea that will undermine the accuracy and reliability of the findings of campus courts."

OCR is the federal agency tasked with enforcing federal civil rights laws, including Title IX, in educational programs and institutions that receive federal funding. OCR’s April 4 letter decrees that under Title IX, the "prompt and equitable resolution" of student complaints regarding sexual harassment and sexual violence requires that "school[s] must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)"a requirement not previously discovered in the 39-year-old law. OCR explicitly rules out the use of higher standards of proof, stating that university judicial systems maintaining the "clear and convincing" standardwhich requires accusers to prove that "it is highly probable or reasonably certain that the sexual harassment or violence occurred"are "not equitable under Title IX." Both standards of proof fall far short of the "beyond a reasonable doubt" standard required in every criminal case in the United States.

FIRE’s open letter points out that Supreme Court precedent argues strongly against using the preponderance of the evidence standard in campus hearings concerning allegations of sexual harassment and sexual violence. In cases where "the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight," the Court held in Santosky v. Kramer (1982) that use of the preponderance of the evidence standard is "inconsistent with due process." In the educational context, the Supreme Court further observed in Goss v. Lopez (1975) that when "a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him," due process requires "precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school."

FIRE’s letter also notes that lowering the burden of proof in sexual harassment and sexual violence cases will reduce confidence in campus judiciary systems and inevitably result in more incorrect guilty verdicts. Rather than provide for the "prompt and equitable" resolution of student allegations, FIRE contends that OCR’s new requirement "serves to undermine the integrity, accuracy, reliability, and basic fairness of the judicial process." Further, relying on the preponderance of the evidence standard in sexual violence claims "turns the fundamental tenet of due process on its head, requiring that those accused of society’s vilest crimes be afforded the scant protection of our judiciary’s least certain standard."

FIRE’s concerns about the threat to due process rights presented by OCR’s new mandate 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 2011: The State of Free Speech on Our Nation’s Campuses, revealed that 67 percent of the 390 colleges and universities analyzed maintain policies that seriously infringe upon students’ free speech rights. For example, the University of Florida lists "humor and jokes about sex that denigrate a gender" as an example of actionable sexual harassment, and Illinois State University bans "discussions about sexual activity" as sexual harassment. Universities also enforce codes of conduct that define sexual assault in vague, inexact ways. For example, in April 2010, Duke University instituted a "sexual misconduct" policy that could render a student guilty of non-consensual sex simply because he or she is considered "powerful" on campus.

OCR’s new regulations have already prompted colleges and universities across the country to abandon their commitment to due process protections for students accused of sexual harassment and sexual violence. Brandeis University, Stanford University, Yale University, and the University of Massachusetts Amherst all have announced revisions, either already instituted or forthcoming. Given the threat of federal investigation and the loss of federal funding for failing to comply with OCR’s directives, hundreds of institutions will follow.

The new federal regulations are part of a worrying national trend as federal and state legislators rush "anti-bullying" acts and similar legislation into law. The proposed Tyler Clementi Higher Education Anti-Harassment Act and Campus Sexual Violence Elimination (SaVE) Act would similarly restrict fundamental liberties and violate students’ rights.

In the open letter, FIRE also criticizes OCR for failing to explicitly remind colleges and universities of the importance of protecting students’ right to free expression. In previous letters, OCR specifically addressed First Amendment concerns, making it clear that universities must protect student speech rights and emphasizing that there need be no tension, under OCR regulations, between addressing sexual harassment and ensuring freedom of expression.

"Given OCR’s undeniable power over student conduct policies nationwide, the April 4 letter’s disregard for student rights raises troubling questions about the agency’s commitment to core constitutional principles like due process and freedom of speech," Will Creeley, FIRE’s Director of Legal and Public Advocacy, said. "Addressing sexual harassment and sexual violence does not require colleges and universities to forsake student rights. FIRE asks OCR to reconsider its ill-advised regulations, lest our newest generation of college students learn the wrong lessons about the rights they hold in our modern liberal democracy."

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 www.thefire-dev.wp.eresources.ws.

CONTACT:
Will Creeley, Director of Legal and Public Advocacy, FIRE: 215-717-3473; will@www.thefire-dev.wp.eresources.ws

Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections