The Obama administration’s aggressive efforts to stamp out sexual assault on American college campuses is about to face a big legal challenge from one of the country’s largest campus civil liberties groups.
The Foundation for Individual Rights in Education (FIRE) has long busied itself with promoting free speech, academic freedom, and other concerns on American campuses. While it was originally just an advocacy group, in the last two years it has pursued a more aggressive strategy of undertaking lawsuits against schools it believes illegally suppress student speech rights.
Now, FIRE is looking to take on an even bigger fish: The Obama administration and the requirements it places on schools regarding sexual misconduct.
Since 2011, the Obama administration has been significantly more aggressive in trying to combat sexual assault on American campuses. A key part of this effort is 2011’s “Dear Colleague” letter, sent to university presidents around the country by the Department of Education’s Office of Civil Rights (OCR). While the letter is not a regulation, it is generally seen as having the force of law, because it explains how the federal government plans to interpret existing regulations.
The letter orders schools to establish procedures for quickly investigating and punishing allegations of sexual misconduct or else be considered in violation of Title IX, a law prohibiting sex discrimination in schools that receive federal money. Notably, the letter also requires schools to use a lower “preponderance of the evidence” standard for adjudicating sexual assault cases. That new requirement essentially making it easier for students to be suspended or expelled over an allegation of sexual harassment or assault.
The pressure from OCR has created a difficult situation for universities. On the one hand, schools found in violation of Title IX can lose all their federal funding, a virtual death sentence for many institutions. But on the other hand, dozens of suspended or expelled students have sued their schools, claiming they were unjustifiably railroaded off campus, and some of those lawsuits have started finding success in court.
In a statement, FIRE executive director Robert Shibley said the letter’s effects on colleges and students have been both disastrous and of dubious legality.
“In the five years since its issuance, OCR has acted as though the 2011 Dear Colleague letter is binding law—but it isn’t,” Shibley said. “By circumventing federal law, OCR ignored all stakeholders: victims, the accused, civil liberties advocates, administrators, colleges, law enforcement, and the general public. Real people’s lives are being irreparably harmed as a result. It’s time that OCR be held accountable.”
Because OCR imposed new requirements on colleges in the form of a Dear Colleague letter, without going through the full regulatory process, FIRE argues the past five years of intense regulatory pressure on colleges was actually illegal an illegitimate.
FIRE’s lawsuit isn’t dropping just yet, though. Instead, the group is soliciting students and institutions that may be interested in serving as plaintiffs.
FIRE’s announcement comes in the wake of aggressive criticism from Republican Sen. James Lankford, who has criticized the Department of Education in a series of letters that accuse it of imposing new regulations that aren’t based on any Congressional authority.
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