Changes to Violence Against Women Act Could Threaten Student Due Process Rights

In a press release issued today, FIRE warns that congressional legislation reauthorizing the Violence Against Women Act (VAWA) may include new provisions sharply reducing due process protections for college students accused of sexual assault.

A draft of the Violence Against Women Reauthorization Act of 2011 circulated by Senator Patrick Leahy's office effectively requires that colleges and universities receiving federal funding must employ a "preponderance of the evidence" standard—a 50.01%, "more likely than not" evidentiary burden—when adjudicating student complaints concerning sexual assault. The draft also includes a provision requiring universities to allow alleged victims of sexual assault to appeal the results of college disciplinary hearings, subjecting accused students to a form of "double jeopardy" not allowed in our nation's courts.

If these proposed legislative changes sound familiar, that's because they were first contained in the Campus Sexual Violence Elimination (SaVE) Act. (Indeed, Section 304 of the draft VAWA bill is titled "Campus SaVE Act.") The Campus SaVE Act, introduced in both the Senate and the House of Representatives, contains nearly identical requirements and similarly restricts fundamental due process rights.

And even before the Campus SaVE Act, these changes were mandated by the Department of Education's Office for Civil Rights (OCR), the federal agency tasked with enforcing federal anti-discrimination statutes. In an April 4, 2011, "Dear Colleague Letter" from Assistant Secretary for Civil Rights Russlynn Ali, OCR mandated that colleges and universities receiving federal funding must employ a preponderance of the evidence standard under Title IX when adjudicating allegations of sexual harassment and sexual assault—a requirement the 39-year-old law had not previously been interpreted to contain.

The draft bill provides that colleges adjudicating student complaints concerning sexual assault must "apply the standard of proof recommended by the most recent Guidance issued by the Department of Education's Office for Civil Rights" (OCR). This would codify OCR's new regulation on standard of proof, which has already coerced colleges and universities across the country to abandon their commitment to due process protections for students accused of sexual assault.

As FIRE pointed out in our May 5, 2011, open letter to OCR, Supreme Court precedent argues strongly against using the preponderance of the evidence standard in campus hearings concerning allegations of sexual harassment or sexual violence. Preponderance of the evidence is our judiciary's lowest evidentiary standard and provides insufficient protection to students accused of serious misconduct. In our letter, we explained that lowering the burden of proof in sexual assault cases will reduce confidence in campus judiciary systems and inevitably result in more incorrect guilty verdicts.

The draft bill also provides that colleges must maintain "procedures for the accused and the victim [emphasis added] to appeal the results of the institutional disciplinary proceeding." The requirement contradicts the Fifth Amendment's prohibition on "double jeopardy," whereby someone accused of a crime cannot be tried again for the same charge once the original hearing has properly ended in either acquittal or conviction. For the same reasons of fundamental fairness that our criminal justice system does not allow the accused to face double jeopardy, Congress should not force college students to face a second hearing for the same charge. Further, allowing accusers to appeal a not-guilty finding amplifies the due process problems introduced by the preponderance of the evidence mandate.

Unfortunately, OCR has failed to respond to FIRE's letter or to two letters from the American Association of University Professors in defense of due process rights.

As FIRE President Greg Lukianoff said in today's press release, "Reducing protections for students who are accused of serious misconduct will not increase justice." That's why FIRE is urging citizens to contact their Senators and ask them to reject these provisions in the draft bill. To be clear, FIRE holds no position on any other section of VAWA or the draft bill.