Dept. of Education Challenged by FIRE, Coalition about Silence on Threats to Student Rights

WASHINGTON, May 7, 2012—In an open letter sent today, the Foundation for Individual Rights in Education (FIRE) and 19 other signatories urge the Department of Education's Office for Civil Rights (OCR) to address the threats to student rights posed by OCR's "Dear Colleague" letter regarding sexual harassment and sexual assault on campus.

Today's open letter asks OCR to remedy the threat to student due process rights presented by new mandates announced in the agency's April 4, 2011, "Dear Colleague" letter. OCR now requires that colleges and universities receiving federal funding employ our judiciary's lowest standard of proof (the "preponderance of the evidence" standard) in adjudicating sexual harassment and sexual assault cases. OCR also requires that institutions provide the accuser a right to appeal if the accused is provided that right, forcing the accused to defend himself or herself even after being cleared of wrongdoing, which violates the principle of fundamental fairness enshrined in our constitutional prohibition of "double jeopardy."

The open letter also asks OCR to affirm the definition of peer-on-peer sexual harassment provided by the Supreme Court of the United States in Davis v. Monroe County Board of Education (1999), noting that OCR's "Dear Colleague" letter fails to supply institutions with a clear, constitutional definition of sexual harassment in the educational context. The absence of this definition will create further confusion about institutional obligations to respond to sexual harassment while also respecting student free speech rights.

FIRE wrote OCR on May 5, 2011, to express these concerns, and again on January 6, 2012, to emphasize the importance of clarity with regard to the definition of sexual harassment. FIRE has yet to receive an answer to either letter.

"The Office for Civil Rights of the Department of Education needs to understand that ignoring the threats to due process and free speech on campus it created with its April 4, 2011, letter will not make those threats disappear," said FIRE President Greg Lukianoff. "We hope that OCR finally decides to answer the concerns voiced by this broad coalition of groups and individuals that spans the political and ideological spectrum."

FIRE is joined in today's letter by a broad range of signatories. The complete list of signatories is provided below.

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 can be viewed at thefire.org.

CONTACT:

Greg Lukianoff, President, FIRE: 215-717-3473; greg_lukianoff@thefire.org

SIGNATORIES:

Joe Cohn
Legislative & Policy Director
Foundation for Individual Rights in Education

Professor Cynthia Bowman*
Dorothea S. Clarke Professor of Law
Cornell University Law School

Professor Kevin Clermont*
Robert D. Ziff Professor of Law
Cornell University Law School

David A. Cortman
Vice-President, Religious Liberty
Senior Counsel
The Alliance Defense Fund, Center for Academic Freedom

Suzanne A. Delaney
Managing Director
Feminists for Free Expression

Christopher Finan
President
American Booksellers Foundation for Free Expression

Professor Roy Gutterman
Director
The Tully Center for Free Speech at Syracuse University's
S.I. Newhouse School of Public Communications

David Horowitz
President
The David Horowitz Freedom Center

Professor KC Johnson*
Professor of History
Brooklyn College and the City University of New York Graduate Center

Malcolm Kline
Executive Director
Accuracy in Academia

Eli Lehrer
National Director and Vice President
The Heartland Institute

John Leo*
Senior Fellow
Center for the American University at the Manhattan Institute

Professor Michael McConnell*
Richard and Frances Mallery Professor of Law and Director of the Constitutional Law Center
Stanford Law School

Anne D. Neal
President
American Council for Trustees and Alumni

Professor Cary Nelson*
Professor of English
University of Illinois at Urbana-Champaign
President
American Association of University Professors

Glenn Ricketts
Public Affairs Director
National Association of Scholars

Jane S. Shaw
President
John William Pope Center for Higher Education Policy

Christina Hoff Sommers*
Resident Scholar
American Enterprise Institute

Professor Nadine Strossen*
New York Law School
Former President, American Civil Liberties Union (1991 - 2008)

Sue Udry
Director
Defending Dissent Foundation

*These individuals have signed on in their individual capacities. Accordingly, affiliations are for identification purposes only.