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

In April 2011, the United States Department of Education's Office for Civil Rights (OCR) established new mandates requiring colleges and universities receiving federal funding to dramatically reduce students' due process rights. Under the new regulations, announced in a letter from Assistant Secretary for Civil Rights Russlynn Ali, colleges and universities must employ a "preponderance of the evidence" standard—a 50.01%, "more likely than not" evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. The regulations further require that if a university judicial process allows the accused student to appeal a verdict, it must allow the accusing student the right to appeal as well, resulting in a type of "double jeopardy" for the accused. Additionally, OCR's letter fails to recognize that truly harassing conduct (as defined by the law) is distinct from protected speech. Institutions that do not comply with OCR's new regulations face federal investigation and the loss of federal funding. FIRE has written OCR expressing deep concern about the new requirements but has yet to receive a response.

Case Materials

• "Controversial Head of Dept. of Ed’s Office for Civil Rights Steps Down," November 30, 2012: Russlynn Ali, assistant secretary for civil rights for the U.S. Department of Education, reportedly announced yesterday in a conference call that she would be stepping down from the post as of today. Under her tenure, the Department's Office for Civil Rights (OCR) has failed for more than a year and a half to answer letters from FIRE and the American Association of University Professors (AAUP) about OCR's controversial 2011 mandate that colleges receiving federal funding sharply reduce crucial due process protections for students accused of sexual harassment or misconduct.
• "H. R. 4970, Violence Against Women Reauthorization Act of 2012," May 16, 2012
• "Dept. of Education Challenged by FIRE, Coalition about Silence on Threats to Student Rights," May 7, 2012: In an open letter sent today, 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. 
• "Open Letter to OCR from FIRE Coalition," May 7, 2012
• "Bipartisan Support for Student Rights in Senate VAWA Reauthorization," April 30, 2012: The U.S. Senate made bipartisan progress on college student rights on Friday as it passed the Violence Against Women Reauthorization Act of 2011 (VAWA). Heeding the concerns of FIRE, Senators altered language in the final bill that might have required colleges and universities to employ our nation's weakest standard of proof in adjudicating allegations of sexual misconduct. 
• "S. 1925, Violence Against Women Reauthorization Act of 2011," April 26, 2012
• "Letter from FIRE to Cornell University, April 10, 2012," April 10, 2012
• "One Year Later, Silence from Department of Education’s Office for Civil Rights on Due Process, Free Speech Concerns," April 4, 2012: One year after issuing controversial federal regulations that require colleges and universities to reduce student due process rights, the United States Department of Education's Office for Civil Rights (OCR) remains silent in the face of criticism from students, professors, alumni, university administrators, higher education lawyers, civil rights advocates, and the press. Today, FIRE renews its call for the revocation of the new mandates imposed by the letter.
• "Threat to Student Due Process Rights Dropped from Draft of Violence Against Women Act," November 14, 2011: Responding to criticism from FIRE and others, Senator Patrick Leahy of Vermont, who is Chairman of the Senate Judiciary Committee, will drop a provision in a draft of the Violence Against Women Reauthorization Act of 2011 that would have required college students accused of sexual assault to be tried under the weak "preponderance of the evidence" standard of proof.
• "Changes to Violence Against Women Act Would Threaten Student Due Process Rights," October 31, 2011: 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, FIRE has learned. 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.
• "Campus Sexual Violence Elimination (SaVE) Act,"
• "Standard of Evidence Survey: Colleges and Universities Respond to OCR's New Mandate," October 28, 2011
• "AAUP Second Letter to U.S. Department of Education's Office for Civil Rights, August 18, 2011," August 18, 2011
• "Frequently Asked Questions: OCR's April 4 "Dear Colleague" Guidance Letter," August 15, 2011
• "AAUP Letter to U.S. Department of Education's Office for Civil Rights, June 27, 2011," June 27, 2011
• "FIRE's 'One Trick': Protecting Civil Liberties," June 2, 2011
• "Greg on the New Government Threat to Campus Free Speech in 'The Daily Caller'," May 25, 2011: FIRE President Greg Lukianoff has an article in The Daily Caller today discussing how the federal Department of Education's Office for Civil Rights' latest guidance for universities, in an April 4 "Dear Colleague" letter, threatens free speech on nearly all of our nation's campuses. As Greg writes, in an effort to crack down on sexual harassment, OCR is giving new teeth to absurdly unconstitutional speech codes that ban things like "innuendo," "flirtation," and "jokes" that any person on campus, no matter how unreasonably, might find offensive.
• "FIRE: New Federal Regulations Limit Due Process, Free Speech Rights on Campus," May 5, 2011: In response to new federal regulations announced last month that require colleges and universities to dramatically reduce students' due process rights, 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" standard—a 50.01%, "more likely than not" evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. Institutions that do not comply face federal investigation and the loss of federal funding.
• "FIRE Letter to Office for Civil Rights Assistant Secretary for Civil Rights Russlynn Ali, May 5, 2011," May 5, 2011
• "U.S. Department of Education's Office For Civil Rights "Dear Colleague" Letter, April 4, 2011," April 4, 2011
• "Letter from the United States Department of Education's Office for Civil Rights, July 28, 2003," July 28, 2003
• "U.S. Department of Education Office for Civil Rights Revised Sexual Harassment Guidance, January 2001," January 1, 2001
• "Violence Against Women Reauthorization Act of 2011 Draft,"

Blog Entries

• "Stephen Henrick in Law Review on Rights of Students Accused of Sexual Assault," by Susan Kruth, May 17, 2013
• "Department of Education’s Latest 'Dear Colleague' Letter on Title IX Retaliation is Puzzling," by Catherine Sevcenko, April 29, 2013
• "Walter Russell Mead Emphasizes the Importance of the Presumption of Innocence," by Susan Kruth, April 25, 2013
• "Lewis and Shaw: Schools Must Preserve Rights in Sexual Assault Cases," by Susan Kruth, April 18, 2013
• "House Votes to Reauthorize VAWA; How Will It Impact Student Rights?," by Joseph Cohn, February 28, 2013
• "New AAUP Statement on Campus Sexual Assault: ‘Clear and Convincing Evidence’ Standard ‘Necessary’ to Protect Due Process, Shared Governance," by William Creeley, February 14, 2013
• "Joe Cohn in ‘LGBTQ Nation’ On Tyler Clementi Higher Education Anti-Harassment Act," by Joseph Cohn, February 6, 2013
• "New FIRE Op-ed in ‘The Stanford Daily’," by Bridget Glackin, November 2, 2012
• "Responding in Full to ‘Preponderance of the Evidence’ Advocates ," by Joseph Cohn, October 18, 2012
• "Responding to 'Preponderance of the Evidence' Advocates ," by Robert Shibley, October 15, 2012
• "Joe Cohn on Campus vs. Civil Trials in ‘The Chronicle of Higher Education’," by Joseph Cohn, October 1, 2012: In an op-ed this week for The Chronicle of Higher Education, FIRE's Joe Cohn debunks the U.S. Department of Education's Office for Civil Rights' faulty argument that campus judiciaries are similar enough to federal civil courts that they can use the "preponderance of the evidence" standard to decide sexual misconduct cases without risking reliability and fairness.
• "Former OCR Attorney: ‘Dear Colleague’ Letter’s Preponderance Mandate ‘Unlawful’," by Joseph Cohn, September 12, 2012
• "Vanderbilt Versus Fairness," by Nico Perrino, September 4, 2012
• "Missouri State Latest School to Succumb to OCR Mandate," by Peyton Cudaback, August 29, 2012
• "KC Johnson on the Latest Threats to Due Process on Campus," by Bridget Glackin, July 24, 2012
• "A Balanced Approach to VAWA," by Joseph Cohn, July 24, 2012
• "Where FIRE Stands on VAWA," by Joseph Cohn, May 31, 2012
• "Dueling Editorials at Stanford about Standard of Evidence," by Robert Shibley, May 24, 2012
• "OCR: Reducing Protection for the Accused," by Gina Luttrell, May 22, 2012
• "House VAWA Includes Millions for Controversial ‘Campus Safety’ Center ," May 17, 2012: Yesterday, the U.S. House of Representatives passed its version of the Violence Against Women Reauthorization Act of 2012 (VAWA), which includes millions of dollars in federal funding to create a "National Center for Campus Public Safety." The proposed Center raises serious concerns for students, faculty, colleges and universities, taxpayers, and campus rights advocates. As the Senate and House versions of VAWA appear poised to be reconciled in conference committee, FIRE is urging Congress to reexamine support for the Center.
• "‘Crimson’ Reports on Due Process Concerns as Harvard Revises Sexual Assault Policy," by William Creeley, May 14, 2012
• "Dept. of Education Challenged by FIRE, Coalition about Silence on Threats to Student Rights," May 7, 2012
• "FIRE to Stanford Graduate Student Council: Protect Students’ Due Process," by Azhar Majeed, May 3, 2012
• "Bipartisan Support for Student Rights in Senate VAWA Reauthorization," April 30, 2012
• "Cornell Becomes Latest College to Incorporate "Two-Tier" Disciplinary Process Following OCR Mandate," by William Creeley, April 27, 2012
• "‘Inside Higher Ed’, KC Johnson on the University of North Carolina’s New ‘Two-tiered’ Disciplinary Procedures," by William Creeley, April 26, 2012
• "AP: Sexual Assault Claims on Campus a ‘Legal Minefield’," by Samantha Harris, April 23, 2012
• "FIRE Asks Cornell to Preserve Due Process," by Adam Kissel, April 11, 2012: Yesterday, FIRE asked Cornell University President David Skorton to choose robust student due process rights over the weak evidentiary standard required by the U.S. Department of Education's Office for Civil Rights. After a year of vigorous campus debate, Cornell's University Assembly passed a new policy yesterday that would mandate the use of the "preponderance of the evidence" standard—our judiciary's lowest—in adjudicating allegations of sexual assault. The policy is now before President Skorton for approval. 
• "Cornell Grad Urges University Not to Abandon Protections for the Accused," by Robert Shibley, April 10, 2012
• "OCR's April 4 Letter and Opposition in the National Media," by Greg Lukianoff, December 26, 2011
• "Naomi Schaefer Riley in 'Chronicle' on the Need to Allow Room for Law Enforcement to Handle Campus Crime," by Azhar Majeed, November 18, 2011
• "How a Due Process Abuser Became a Rape Apologist," by Robert Shibley, November 11, 2011
• "An Anonymous College Administrator Struggles with the OCR Letter," by Robert Shibley, November 8, 2011
• "Cathy Young Highlights New Threats to Due Process on Campus," by William Creeley, November 7, 2011
• "Changes to Violence Against Women Act Would Threaten Student Due Process Rights," by William Creeley, October 31, 2011
• "FIRE Releases Survey of Evidence Standards Used by Nation's Top Colleges," by William Creeley, October 28, 2011: FIRE has surveyed the standards of evidence employed by the nation's top 100 colleges and universities in order to gauge the impact of the new requirements announced by the Department of Education's Office for Civil Rights (OCR). In April, OCR mandated 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 harassment or sexual violence. FIRE's survey, released today, indicates that nearly 40 of the nation's top 100 institutuons must change or have already changed their policies to incorporate OCR's new, low standard of proof. FIRE's research also reveals that OCR's requirement disproportionately affects higher-ranked schools, more of which had previously employed higher standards of proof.
• "Controversy over OCR 'Preponderance' Mandate Reaches Southern Methodist U.," by Azhar Majeed, October 24, 2011
• "Did the Office for Civil Rights' April 4 'Dear Colleague' Letter Violate the Law?," by Ari Cohn, September 12, 2011: Did the April 4 "Dear Colleague" letter sent by the Department of Education's Office for Civil Rights (OCR) violate the federal law governing administrative rulemaking? In a new blog entry on The Torch, FIRE Legal Fellow Ari Cohn offers an in-depth examination of this question and concludes that OCR's promulgation of new mandates on colleges and universities nationwide violated the Administrative Procedure Act.
• "Robert in 'Daily Caller': How New Federal Regulations Are Making Some Higher Ed Lawyers Rich," by Joanna Brenner, September 2, 2011
• "Former FIRE Intern Discusses OCR and Due Process," by Jaclyn Hall, September 1, 2011
• "Adam in 'The Huffington Post' on 'Sticking Up for Penises Everywhere'," by Joanna Brenner, August 31, 2011
• "'Philadelphia' Magazine Exposes Major Government Threat to Rights on Campus--And the Lawyers Who Profit," August 26, 2011: A must-read article in Philadelphia Magazine's latest issue exposes the new federal threat to due process rights on campus regarding sexual misconduct and harassment—and the lawyers and organizations that profit from the mandate. One group even grossed $425,000 from a single seminar about complying with the new regulations. The article also features FIRE's work to protect the rights of all students and the integrity of campus judiciaries by ensuring fair standards of justice. It reveals the flippant attitude towards fair procedures displayed by the lawyers who profit most from the government mandate. The article is essential reading for parents, college students, and administrators nationwide.
• "In 'Wall Street Journal' Op-Ed, Peter Berkowitz Takes on New OCR Mandates," by William Creeley, August 20, 2011: In today's Wall Street Journal, Peter Berkowitz argues that new mandates from the federal Department of Education's Office for Civil Rights (OCR) reduce due process rights on campus in ways that will have devastating consequences for those falsely accused of sexual harassment and sexual assault. Anticipating the impact of OCR's new requirements for university judicial processes, Berkowitz argues that "universities are institutionalizing a presumption of guilt in sexual assault cases."    
• "Reflections on AAUP's Criticism of OCR's 'Preponderance of the Evidence' Standard in Defense of Faculty Rights," by Adam Kissel, August 19, 2011
• "This Week in FIRE News: Opposition to OCR's New Standards Grows," by Joanna Brenner, August 19, 2011
• "AAUP Extends Criticism of OCR 'Preponderance of the Evidence' Standard, Defends Faculty Rights," by Adam Kissel, August 18, 2011
• "FIRE Publishes FAQ for Students on New OCR Mandates," by William Creeley, August 17, 2011: FIRE has published answers to frequently asked questions from students about the new threats to due process and freedom of speech in recent guidance from the federal Department of Education's Office for Civil Rights. This FAQ explains, among other things, why mandating that colleges and universities employ the "preponderance of the evidence" standard for allegations of sexual harassment and sexual violence is inappropriate and why this lowered standard threatens free speech and due process. All students returning to campus this fall should be sure to review our FAQ.
• "Former FIRE Intern Defends Due Process in 'The Philadelphia Inquirer'," by Jaclyn Hall, August 15, 2011
• "This Month in FIRE History: OCR Reinforces First Amendment Protections on Campus," by Bridget Glackin, August 11, 2011
• "Untangling the Web of Federal Regulations on Campus Sexual Assault," by Azhar Majeed, August 2, 2011
• "AAUP to Office for Civil Rights: New Evidence Requirement Conflicts with Our Standards, Jeopardizes Academic Freedom and Tenure," by Adam Kissel, July 29, 2011
• "American Association of University Professors Asks Office for Civil Rights to Withdraw New Evidence Requirement," by Adam Kissel, July 28, 2011: The American Association of University Professors (AAUP) has joined FIRE in asking the U.S. Department of Education's Office for Civil Rights (OCR) to rescind its new mandate that colleges use a "preponderance of the evidence" standard of proof when adjudicating cases of alleged sexual harassment or assault. In a June 27 letter to OCR, Gregory F. Scholtz, Director of the AAUP's Department of Academic Freedom, Tenure, and Governance, explained that the requirement demands a "lower standard of proof than what we consider necessary to protect academic freedom and tenure," and noted that the lowered standard conflicts with AAUP recommendations. (The AAUP has not commented on other new OCR efforts in this area.) The AAUP's stance on OCR's new evidentiary standard is welcome support of fundamental fairness and due process in higher education.    
• "Ilya Shapiro on the Dangers of the April 4 OCR Guidance," by Samantha Harris, June 23, 2011
• "Robert Tackles OCR's Threat to Campus Rights on WGN Radio," by Joanna Brenner, June 22, 2011
• "Michael Barone Takes on OCR's Erosion of Campus Due Process," by William Creeley, June 22, 2011
• "Greg in 'The Huffington Post' on Federal Government's Threat to Free Speech," by Bridget Glackin, June 17, 2011
• "FIRE: One-Trick Ponies in Tinfoil Hats?," by Samantha Harris, June 9, 2011
• "FIRE Board of Advisors Member Christina Hoff Sommers Illustrates Problems with Government's Sexual Assault Guidance in 'Chronicle of Higher Education'," by Azhar Majeed, June 6, 2011
• "FIRE’s 'One Trick': Protecting Civil Liberties," by William Creeley, June 2, 2011
• "Jeffrey Hadden of 'Detroit News' the Latest to Join the Chorus Against OCR's Policy Guidance," by Azhar Majeed, May 31, 2011
• "In 'PolicyMic,' FIRE's Peter Bonilla Discusses OCR's Threat to Free Speech," by William Creeley, May 27, 2011
• "Harvey and Kyle on 'Minding the Campus' on What Yale Should Have Said to OCR," by Azhar Majeed, May 24, 2011
• "Why Yale Frat Chants Are Not 'Harassing' or 'Threatening'," by Erica Goldberg, May 19, 2011
• "Cato's Roger Pilon on OCR and its Threat to Student Due Process," by Peter Bonilla, May 13, 2011
• "Everyone is Harmed by Reducing Due Process in Campus Sexual Assault Cases," by Samantha Harris, May 13, 2011
• "New OCR Letter Marks Radical Change in Due Process Guidance," by Azhar Majeed, May 10, 2011
• "Schools in a Rush to Comply with Office for Civil Rights' 'Dear Colleague' Letter," by Ari Cohn, May 9, 2011
• "This Week in the News: FIRE Responds to OCR Letter," by Jordan Fischetti, May 6, 2011
• "Federal Government's Legislative and Regulatory Push Ignores Individual Rights in Zeal to Protect Students," by Erica Goldberg, May 6, 2011
• "Office for Civil Rights Fails to Acknowledge Free Speech Rights When Addressing 'Sexual Harassment' on Campus," by Azhar Majeed, May 5, 2011
• "New Federal Regulations Limit Due Process, Free Speech Rights on Campus," by William Creeley, May 5, 2011
• "FIRE Issues Statement in Response to OCR 'Dear Colleague' Letter on Universities' Obligations Regarding Sexual Harassment and Sexual Assault," by Azhar Majeed, April 4, 2011: FIRE has issued a statement in response to the Department of Education's Office for Civil Rights' (OCR's) "Dear Colleague" letter, sent today to federally funded colleges and universities, regarding schools' obligations under federal regulations to address sexual harassment and sexual assault. The letter calls into question OCR's continued respect for the free speech rights enjoyed by students at our nation's universities and fails to replicate the exacting, speech-protective understandings of hostile environment sexual harassment contained in previous OCR guidance letters. As a result, it threatens to push university policy away from the careful balance required to uphold students' free speech rights when meeting their obligations to prevent hostile environment sexual harassment.

Media Coverage

• "No due process for college rape trials?,"
  by Garth Kant, WND Education, April 5, 2013
• "False Sex-Assault Convictions Easier Under Obama,"
  by Bob Unruh, World Net Daily, May 10, 2012
• "On campus, debate over civil rights and rape,"
  by Justin Pope, The Boston Globe, April 21, 2012
• "For colleges, rape cases a legal minefield,"
  by Justin Pope, Newsday, April 21, 2012
• "Sen. Leahy removes potential threat to due process from Violence Against Women Act,"
  by Caroline May, The Daily Caller, November 15, 2011
• "Leahy scraps provision in anti-domestic violence bill following complaints,"
  by Nicole Gaudiano, Burlington Free Press, November 11, 2011
• "The Politics of Campus Sexual Assault,"
  by Cathy Young, RealClearPolitics, November 6, 2011
• "Senate Bill Would Further Undermine Due Process on Campus,"
  by Hans Bader, OpenMarket.org, October 24, 2011
• "Feds warn colleges: handle sexual assault reports properly,"
  by Stacy Teicher Khadaroo, The Christian Science Monitor, September 2, 2011
• "Editorial: OCR guilty of lowering conviction standards,"
  by Staff Editorial, The Delaware County Daily Times, September 1, 2011
• "Standing Up for Due Process on Campus = "Sticking Up for Penises Everywhere?","
  by Adam Kissel, The Huffington Post, August 30, 2011
• "On Sexual Harassment and Title IX,"
  by Robert Smith, Real Clear Politics, August 30, 2011
• "American Association of University Professors expresses concern over Dept. of Education’s new mandates,"
  by Caroline May, The Daily Caller, August 18, 2011
• "Rape should be tough to prove,"
  by Cynthia Bell, The Philadelphia Inquirer, August 14, 2011
• "Kudos to the AAUP,"
  by Peter Wood, The Chronicle of Higher Education, August 4, 2011
• "Opposition mounts to federal govt’s new university sexual harassment rules,"
  by C.J. Ciaramella, The Daily Caller, July 30, 2011
• "The feds' mad assault on campus sex,"
  by Samantha Harris, New York Post, July 19, 2011
• "Yes Means Yes--Except on Campus,"
  by Harvey Silverglate, The Wall Street Journal, July 15, 2011
• "Feds crack down on campus flirting and sex jokes,"
  by Michael Barone, Washington Examiner, June 21, 2011
• "The Department of Education, Yale, And the New Threat to Free Speech on Campus,"
  by Greg Lukianoff, The Huffington Post, June 15, 2011
• "The feds' campus Keystone Kops,"
  by Jeffrey Hadden, The Detroit News, May 31, 2011
• "Yale, the Department of Education, and the looming free speech crisis,"
  by Greg Lukianoff, The Daily Caller, May 24, 2011
• "Falsely accused teachers and students will be harmed by new Education Department policy,"
  by Hans Bader, Washington Examiner, May 16, 2011
• "Dept of Education orders universities to lower burden of proof in sex crime cases,"
  by Caroline May, The Daily Caller, May 6, 2011
• "UVa plans to revise sexual misconduct policy,"
  by Karin Kapsidelis, The Daily Progress, May 6, 2011