Why the Office for Civil Rights' April 'Dear Colleague Letter' Was 2011's Biggest FIRE Fight

Looking back at the year just ending, it's extraordinarily easy to identify FIRE's biggest fight of 2011: the dramatic new regulations announced by the federal Department of Education's Office for Civil Rights (OCR) in its April 4 "Dear Colleague Letter."

In my five years here at FIRE, I can't remember it ever being this easy to select a topic for my end-of-year review. Simply put, FIRE's legal work has been dominated this year by OCR's letter: analyzing OCR's new requirements of every college and university that accepts federal funding (read: virtually all of them); crafting and publicizing our response and concerns; answering critics of our defense of student rights; tracking the importation of the worst of OCR's new regulations into proposed federal legislation; documenting the impact OCR's letter has already had on individual students and schools nationwide; and more.

So while Greg already provided a round-up of the national media response to OCR's letter earlier this week, it is also useful to provide a summary of our work on this front throughout the year, and then to discuss what 2012 might hold.

Let's begin with an explanation of OCR and its April 4 letter.

OCR is the federal agency charged with enforcing federal anti-discrimination statutes-like Title IX of the Education Amendments of 1972, which forbids discrimination on the basis of sex, or Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin. OCR has jurisdiction to oversee compliance with these and other federal anti-discrimination statutes by every college and university nationwide that accepts federal funding.

As I said above, in practice, this means all but a very few colleges are subject to OCR's provisions, as nearly every institution of higher education in the country relies on federal funding to some degree: accepting student loans backed by the federal government, soliciting federal research grants, and so on. Indeed, OCR derives its enforcement power through this virtually uniform reliance on federal funding by our nation's colleges and universities: Failure to comply with OCR directives and regulations can result in the loss of federal funding. That would be a devastating punishment—really, an existential threat for all but the wealthiest institutions, and even those lucky few would be severely damaged. So when OCR talks—most often, in the form of so-called "Dear Colleague" letters—administrators and university counsel listen.

On April 4, OCR issued a 19-page "Dear Colleague" letter announcing a new emphasis on addressing sexual harassment, including sexual violence. Introducing the new regulations contained therein, Assistant Secretary for Civil Rights Russlynn Ali wrote:

The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination and, in the case of sexual violence, is a crime.

[...]

In order to assist recipients, which include school districts, colleges, and universities (hereinafter "schools" or "recipients") in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX. [Internal citations omitted.]

OCR's increased focus on sexual violence was precipitated by studies suggesting that sexual violence on campus is widespread and underreported. Ali wrote:

The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college. The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college. [Internal citations omitted.]

In response, OCR's Dear Colleague letter announced requirements for colleges and universities, specifically with regard to their response protocol for allegations of sexual harassment and sexual violence. These requirements—some previously stated, but others newly introduced—mainly concerned elements of campus judicial procedures, reporting requirements, and staff responsibilities.

In terms of FIRE's concern with protecting student rights, some of the new requirements were unobjectionable and even welcome—for example, OCR's emphasis on making sure that students accused of sexual harassment and sexual violence are afforded the same access to hearing documents, counsel, party statements, and meetings, as well as the opportunity to present witnesses and evidence. It's vitally important that both the accused and the accuser enjoy an impartial and fair hearing process, particularly when a campus judicial procedure is grappling with an allegation of sexual assault, one of the most heinous and awful of all crimes.

Unfortunately, however, OCR's other new requirements presented grave threats to student rights, particularly due process and freedom of expression. I documented these concerns at length in FIRE's May 5 response to OCR, but here's the abridged version from the "Frequently Asked Questions" we authored over the summer:

With regard to due process, OCR's April 4 letter requires colleges and universities investigating and hearing allegations of sexual harassment and sexual violence on campus to use a "preponderance of the evidence" standard to determine if someone is guilty. This standard merely requires that it is "more likely than not" that someone is responsible for what they are accused of, and it is our judiciary's lowest standard of proof. This is because whoever is serving as the "jury" in such a case need only be 50.01% certain that the accused person is at fault.

Given the seriousness of allegations of sexual misconduct—which range from sexual harassment to rape—FIRE believes that requiring universities to find accused students guilty based on this "more likely than not" standard does not sufficiently protect the accused person's right to due process. For comparison, if you are tried in a real court for any crime, no matter how minor, the more familiar "beyond a reasonable doubt" standard must be used, which means that the judge or jury must be virtually certain of your guilt.

In another threat to due process rights, OCR is mandating that if a university judicial process allows the accused student to appeal a verdict, it must also allow the accusing student the right to appeal as well. As explained below, this requirement means that a student found innocent in a hearing may be retried, even if the charges against him or her have already been proven baseless.

With regard to freedom of expression, the April 4 letter fails to explicitly acknowledge that colleges owe free speech rights to their students. It also fails to recognize the fact that truly harassing conduct (as defined by the law) is distinct from protected speech. Public universities may not violate First Amendment rights, and private universities must honor their promises of freedom of expression. Previous OCR letters on this subject were clear about this, but this most recent letter is not.

The reason this lack of clarity is so important (and so disappointing) is that many colleges already enforce vague and overly broad sexual harassment policies, and often confuse speech protected by the First Amendment with speech or conduct that is actually punishable as harassment. With its lack of guidance on this issue, OCR's April 4 letter compounds these problems. Under OCR's new mandate regarding the standard of proof, students falsely charged with sexual harassment need only be found "more likely than not" to have violated a poorly written harassment policy to suffer disciplinary action.

Again, that's the short summary of our concerns. If you're interested in the legal nuts and bolts of the problems with OCR's new requirements, check out our letter, which is as thorough as was warranted, given the high stakes for student rights.

Speaking of our letter, we sent it to OCR on May 5—and, to our amazement and disappointment, we still haven't heard back. OCR's silence is all the more galling when one considers the fact that FIRE isn't the only organization concerned about the threat to due process rights posed by the Dear Colleague letter. Indeed, our deep concerns were echoed over the summer by the American Association of University Professors (AAUP). In fact, the AAUP wrote twice, with the first letter from Gregory F. Scholtz, Associate Secretary and Director, and the second from Cary Nelson, the AAUP's President, and Ann E. Green, Chair of the AAUP's Committee on Women in the Academic Profession. Both letters shared our concerns about the threat to due process and freedom of expression presented by OCR's new requirements. Given the gravity of these threats and the nearly eight months that have passed since we first voiced our worries about them, we're disappointed to still be waiting for a response. Considering that government agencies traditionally respond in some way to just about any letter you send them, the silence from OCR is deafening.

But while OCR has thus far maintained silence, some university administrators chose instead to attack FIRE for our defense of student rights, casting us as being callously unconcerned with the seriousness of sexual assault. Of course, we answered these critics point-by-point; those interested should read our thorough responses here and here. Moreover, we continued to publicize the erosion of due process rights presented by OCR's new requirements in a number of ways: writing opinion pieces and blog entries, sending out press releases, authoring the FAQ, alerting our supporters, and asking allies to help us spread the word. The fruits of our efforts are collected on our website here.

Unfortunately, we quickly learned that our concerns about utilizing the weak preponderance of the evidence standard weren't simply academic. We began to receive case submissions like that of student Caleb Warner, who was suspended for three years from the University of North Dakota for sexual assault under the preponderance standard—despite the fact that local law enforcement not only declined to prosecute him, but actually filed charges against his accuser for lying to police. FIRE Co-founder and Chairman Harvey Silverglate wrote about this shocking injustice in The Wall Street Journal in July, and with FIRE's help, the finding against Caleb was vacated in October.

As we wondered how many other students would be forced to endure erroneous guilty findings as a result of the lowered standard of evidence now mandated by OCR, we were dismayed to find in October that, just as we had predicted, institutions nationwide were beginning to reduce their own standards to comply with OCR's requirement. Our survey of the nation's top universities as ranked by U.S. News & World Report revealed the dramatic impact OCR's Dear Colleague letter will have, as 39 colleges ranked in the top 100 maintained evidentiary standards other than the preponderance of the evidence standard, and thus have already changed or will be required to change their standard of evidence to comply with the OCR mandate. Interestingly, the nation's top colleges will feel the impact most of all, as nine of the top 10 colleges did not use the OCR-mandated "preponderance" standard prior to the OCR letter.

OCR's disregard for due process rights was bad enough, but we were even more concerned to learn that federal legislators were attempting to codify the low preponderance of the evidence standard in federal legislation. The attempt came in two parts, with the first being the Campus Sexual Violence Elimination (SaVE) Act, which would mandate the adoption of the preponderance of the evidence standard and require 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. The Campus SaVE Act was introduced in both the Senate and the House of Representatives, but seemed safely mired in congressional committees. Unfortunately, that failure to gain traction may have been what prompted the bill's backers to successfully push for its inclusion in a draft of the Violence Against Women Reauthorization Act of 2011 circulated by Senator Patrick Leahy's office this past fall. The draft incorporated requirements virtually identical to those contained in the Campus SaVE Act—indeed, Section 304 of the draft VAWA bill was titled "Campus SaVE Act."

In response, FIRE sounded the alarm, issuing a press release and asking concerned citizens to contact their legislators to voice their concerns with including this threat to due process in the VAWA reauthorization bill. In mid-November, we were thrilled to learn our efforts had been successful: Senator Leahy, Chairman of the Senate Judiciary Committee, announced he was dropping the provision. The Burlington Free Press (Vt.) quoted Erica Chabot, spokeswoman for the committee, as saying, "Because of the feedback [Sen. Leahy] has received concerning this proposal, he does not plan to include it in the bill he later will introduce." In a fight for student rights that began in April, this was FIRE's clearest sign yet that due process rights could be protected if people came to understand the threat presented to them.

So what does 2012 hold for FIRE's campaign to roll back OCR's new mandates? Of course, we'll continue to spread the word about the rights reductions contained in the April 4 letter, educating students and faculty about the threat to their rights to due process and freedom of expression. We'll keep pressing OCR to answer the concerns raised by FIRE, the AAUP, and others. We'll also be increasing our presence on the legislative side of the effort, as we're hiring a Legal and Legislative Policy Associate to help us monitor developments on Capitol Hill and elsewhere that threaten campus rights.

Of course, we'll keep you posted on all of these developments right here on The Torch. Thank you so much for your support in 2011. With your help, we'll be successful in our efforts and we'll make sure that by the end of 2012, student and faculty rights are defended like never before.