Five years ago last week, the Department of Education’s Office for Civil Rights issued a letter that would change the face of campus sexual misconduct proceedings at colleges and universities across the country. Now universally notorious as the “Dear Colleague” letter, or DCL for short, the letter was a watershed moment in the regulation of sexual relationships and even sexual speech at colleges all across the country. To borrow a phrase from a blockbuster forthcoming law review article by Harvard Law professors Jeannie Suk and Jacob Gersen, the DCL marked the beginning of the Sex Bureaucracy—now in place on a campus near you.
The biggest change the DCL wrought was its mandate that the burden of proof for sexual misconduct cases on campus be the lowest burden of proof available: the preponderance of the evidence, a mere 50.01% certainty that whatever was claimed actually happened.
Before the DCL was issued, certain schools—including schools with checkered pasts like Duke University and the University of Virginia—required sexual misconduct charges to be proven by the higher standard of clear and convincing evidence. This is usually thought to be in the neighborhood of 66–85%. So if you wanted to accuse someone of a crime that would change their life forever if they were found responsible for it, you had to hit a burden of proof somewhere between your average civil case and what is provided for in the criminal law.
Another mandate from the Office for Civil Rights (OCR) is that allowing either side to cross-examine the other is now highly discouraged—and no school risks what the feds have “discouraged.” Imagine that—the United States government has declared that questioning your accuser on a college campus probably violates federal anti-discrimination law. And since most colleges won’t let attorneys actively represent students, you can’t even have your lawyer do it for you.
A third change that is equally inconsistent with longstanding American legal values is that post-DCL, both sides have the right to appeal any decision. So even if a student is found not responsible after a lengthy hearing, he or she may still be found responsible during an appeal process that allows for utterly indefensible abuses of discretion. For instance, a student one of us (Dillon) represented at George Mason University was found not responsible for sexual assault by a college tribunal, but was nevertheless “convicted” on appeal after his accuser met off-the-record and in secret with an administrator. In February, a federal judge unsurprisingly (and understatedly) deemed this to be “problematic” from a due process perspective.
If these seem like enormously consequential mandates to you, you’re not alone. Normally, when a federal agency wants to take action that will bind the entities that it regulates—here, OCR binding every college and university in the country that receives federal funding—it has to follow a law called the Administrative Procedure Act.
That law, in effect, ensures that the agency adheres to basic principles of accountability. It has to give notice to anyone who might be affected by the rule and allow them to comment on it. Imagine that—an entire law created to ensure that your government has to hear from the people it regulates before it actually regulates them. The mind reels.
But as you might imagine, the government doesn’t always like notice and comment. Asking your constituents for their input can be annoying, because sometimes you actually have to listen to it. (“L’état, c’est moi” is actually a pretty appealing way to run the government if you’re the government.) That’s all the more true when, as here, the goal being sought is a deeply controversial one.
So when it promulgated the DCL, OCR decided to ignore the notice and comment requirement of the APA. Instead, it pretended that it wasn’t actually ordering the schools to do what it was plainly ordering them to do, and that changing the burden of proof was not the sea change that everyone who works in this knew it to be. Pay no attention to the man behind the curtain!
For years now, politicians and commentators alike have been questioning whether OCR had the authority to do what it did, or whether it needed to go through notice and comment. But no one has been able to do anything about it, because no one has stepped up to actually sue OCR for its quite literally lawless actions.
That time has now come. Our respective organizations have partnered together to sue the Department of Education for violating the Administrative Procedure Act. In short, we hope to make OCR explain in court how it can mandate certain behavior yet pretend that it is not doing that at all.
While many schools oppose OCR’s unlawful mandate, few are willing to challenge it, as an OCR investigation promises enormous bad publicity and even threatens a school’s federal funding, including Pell grants and Stafford loans. Losing those would be a death penalty to all but the richest schools. Finding a student willing to stand up and have that fight, or a school brave enough to take on the very federal agency that regulates it, will no doubt be a challenge. But we are optimistic that someone will answer the call and want to fight this with us.
Due process has no political party, and there’s no convenient left-right struggle on this issue to help sell it to the news networks. But we believe that when the government wants to make you do something, it has to follow the rules. It can’t ignore them because they are inconvenient. Louis XIV was not, in fact, the state. Neither is OCR. In America, the state is We The People, and the People deserve to have their say.
Justin Dillon is a partner at Kaiser, LeGrand & Dillon PLLC in Washington, DC, and has represented dozens of students nationwide in campus sexual misconduct cases. Robert Shibley is the Executive Director of the Foundation for Individual Rights in Education.