EDITOR’S NOTE: To mark tomorrow’s release of FIRE Executive Director Robert Shibley’s Twisting Title IX, we’re featuring a series of Title IX articles this week to get you caught up on how this law is being used in unconstitutional and unlawful ways to threaten civil rights on campus.

We’ll revisit some of our most informative past stories and get you up-to-date on the latest happenings with this decades-old law, which has recently been interpreted by the Departments of Education and Justice to apply in ways that increasingly undermine free speech and due process on campus.

Today, we’re taking another look at this piece by FIRE Vice President of Legal and Public Advocacy Will Creeley, written just after the Department of Education’s Office for Civil Rights released its April 4, 2011 Dear Colleague Letter (DCL). The DCL required schools to lower their standard of proof for adjudicating sexual assault claims to a mere “preponderance of the evidence,” or 50.01% likelihood that the offense occurred—or risk losing federal funding. In other words, colleges and universities were to determine responsibility for sexual assault using “the same standard of proof used for a parking ticket,” as FIRE President and CEO Greg Lukianoff pointed out at the time. The DCL also undermines students’ due process rights in other ways, like allowing the accuser the right to appeal (which can be akin to the double jeopardy prohibited in courts of law), and discouraging schools from allowing the parties to cross-examine one another.

FIRE sponsored a challenge to this unlawful mandate this summer. The plaintiffs in Doe v. Lhamon argue that in issuing the DCL, the Office for Civil Rights violated the Administrative Procedure Act’s requirement that new substantive rules go through a notice-and-comment process. Back in 2011, we predicted the very problems our plaintiffs have encountered.

Earlier today, FIRE 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" standard—a 50.01%, "more likely than not" evidentiary burden—when adjudicating student disciplinary matters concerning sexual harassment or sexual violence. Institutions that do not comply face federal investigation and the loss of federal funding.

As Greg says in the press release we sent earlier today:

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. 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" standard—which 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.

Our 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."

We also note 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. As I write in today's letter:

In cases involving allegations of criminal misconduct such as acts of sexual violence, the preponderance of the evidence standard fails to sufficiently protect the accused's rights and is thus inadequate and inappropriate. Given the unequivocal value of a college education to an individual's prospects for personal achievement and intellectual, professional, and social growth, OCR's insistence that schools reduce procedural protections for those students accused of sexual harassment and sexual violence is deeply troubling. Because of the seriousness of these charges, virtually all institutions will punish those students found guilty with lengthy suspensions, if not immediate expulsion. The interest held by both the accused student and society at large in ensuring a correct and just result is therefore far greater than that implicated by a simple "monetary dispute," and a higher standard of proof is demanded. It is unconscionable, given the prospect of life-altering punishment, to require only that those accused of such serious violations be found merely "more likely than not" to have committed the offense in question.

Requiring a lower standard of proof does not provide for the "prompt and equitable" resolution of complaints regarding sexual harassment and sexual violence. Rather, the lower standard of proof serves to undermine the integrity, accuracy, reliability, and basic fairness of the judicial process. Insisting that the preponderance of the evidence standard be used in hearing 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. Under the preponderance of the evidence standard, the burden of proof may be satisfied by little more than a hunch. Accordingly, no matter the result reached by the campus judiciary, both the accuser and the accused are denied the necessary comfort of knowing that the verdict reached is accurate, trustworthy, and fair. The lack of faith in the judicial process that such uncertainty will likely engender should be of great concern to OCR and recipient institutions.

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. As regular readers of The Torch will remember, 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.

Unfortunately, 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. What's more, the new OCR regulations are part of a worrying national trend as federal and state legislators rush "anti-bullying" acts and similar legislation into law. As we've discussed in this space before, 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 our open letter, FIRE also criticizes OCR for failing to explicitly remind colleges and universities of the importance of protecting students' right to free expression, just as we did in the statement we posted last month immediately following the release of OCR's letter. 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.

We will be discussing the problems presented by the new OCR regulations in detail here on The Torch in coming days, so stay tuned.