Suit Challenges DOE Procedure Mandates for College Sex Misconduct Cases

A recent University of Virginia (UVA) law graduate’s new lawsuit attacks the procedural standards for dealing with sexual misconduct cases the Department of Education (DOE) mandates for the nation’s colleges and universities. If successful, the lawsuit could Title IX enforcers to back off their aggressive readings of the specific procedures colleges and universities must use for campus hearings on sexual misconduct.

Filed June 16 in the federal district court in Washington, D.C., the lawsuit identifies the plaintiff with the pseudonym John Doe. In March 2015, a few months before Doe was scheduled to graduate, a sexual assault complaint was filed against him by another law student, identified only as Jane Roe.

It alleged that one evening in August 2013, about a year and a half earlier, Doe had engaged in sexual activity with Roe while she was so inebriated as to be incapable to consent; for his part, Doe denied Roe had seemed intoxicated, much less incapacitated.

Under Title IX of the Education Act Amendments, colleges and universities receiving federal funds are required to investigate and resolve complaints of sex- and gender-related discrimination (including sexual harassment or violence) by employees or students. Failure to do so can bring a federal funds cut-off for the school.

Soon Doe found himself in limbo: the school withheld his diploma until the complaint was resolved (which took almost a year and cost Doe the law firm job he had lined up for after graduation). His campus hearing in January 2016, presided over by a retired Pennsylvania Supreme Court justice, decided that, under the DOE-mandated “preponderance of the evidence” standard, Roe’s arguments held a “slight” advantage over Doe’s defense. Doe was ordered to months of counseling and received a lifetime ban from UVA locations and events.

In the new lawsuit, supported by the campus rights non-profit group Foundation for Individual Rights in Education (FIRE), the plaintiff sued the Department of Education and its Title IX enforcement arm, the Office of Civil Rights (OCR), and the top official at each agency. The suit charges OCR violated the Administrative Procedure Act, which sets fundamental procedures for government agencies, in several ways.

First, Doe’s suit targets Obama administration changes, first issued in an April 4, 2011 “Dear Colleague” letter sent by OCR to campus Title IX coordinators. There, the agency for the first time — a position since reiterated in “Questions and Answers” guidance ORC issued in 2014 — insisted campus hearings use the “preponderance of the evidence” standard in judging sexual misconduct cases. The agency has also chastised schools for using more stringent evidentiary standards, such as demanding claimants make a “clear and convincing” case, or prove a complaint beyond a reasonable doubt.

Opponents of the new stance argue it makes it far easier for a college or complaining student to win a case, but reduces the due-process rights of accused students. (Even the judge hearing Doe’s case called “preponderance of the evidence” the weakest evidentiary standard, the lawsuit notes.)

Further, the 2011 guidance letter departed from DOE’s previous stance and so amounted to important rulemaking, but failed to use APA-required notice-and-comment rulemaking method. The lawsuit also charges DOE’s proffered explanations for mandating a minimal evidentiary standard are so baseless as to be arbitrary and capricious.

Finally, it portrays the plaintiff as the victim of DOE’s and OCR’s well-intentioned but poorly targeted campaign against campus misconduct that, by combining “zeal and hubris,” turns the plaintiff and other defendants in weakly-supported cases into collateral damage, effectively denying their Title IX rights.

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