Dept of Education orders universities to lower burden of proof in sex crime cases

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The Foundation for Individual Rights in Education (FIRE) is going to bat against the Department of Education’s Office for Civil Rights (OCR) over what they see as infringements on college students’ due process and free speech rights.

In a “Dear Colleague” letter sent to colleges and universities in April, Assistant Secretary for Civil Rights Russlynn Ali announced new federal regulations publicly funded schools must employ to address allegations of sexual harassment and sexual violence.

The new standards most notably lower the burden of proof to prosecute.

“[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred),” Ali wrote.

FIRE reacted to OCR’s guidance to colleges and universities — with a letter of opposition Thursday, explaining the regulations infringe on student’s liberties.

“While it is of course necessary for colleges and universities to address allegations of sexual harassment and sexual violence with all requisite purpose, seriousness, and speed, the rights of those accused cannot be sacrificed simply as a function of the accusation itself,” FIRE’s letter reads.

FIRE’s President, Greg Lukianoff, explained that lowering proof standards will not aid the execution of justice.

“OCR is proceeding from the fallacy that reducing protections for the accused will somehow increase justice,” Greg Lukianoff said. “This is a dangerous and wrongheaded idea that will undermine the accuracy and reliability of the findings of campus courts.”

Will Creeley, FIRE’s director of legal and public advocacy, added that the concerns are not theoretical, that students are already having to prepare defenses to the lower standards.

“OCR has moved past the kind of normal responses we would expect to see, i.e. more training, clearer policies, and has decided instead to ‘level the playing field’ by tilting the scales quite clearly in favor of the accuser at the expense of justice on campus,” Creeley told TheDC. “This is a very real dangerous change that will affect student’s lives. More students will erroneously be found guilty of sexual assault due to these lower standards.”

FIRE also wrote of concerns about the stifling of free speech, namely OCR’s failure to address distinctions between “politically incorrect” expression and sexual harassment.

In Mid-April Pennsylvania Democratic Sen. Bob Casey and Washington Democratic Sen. Patty Murray introduced the The Campus Sexual Violence Elimination Act (SaVE Act), which would impose regulations that include mandates similar to those the OCR mandates and adds new reporting and training requirements.

OCR did not respond to requests for comment.

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