Oklahoma Wesleyan University on Monday joined a former University of Virginia student's lawsuit against the U.S. Department of Education, becoming the first institution to legally challenge the department's mandate that colleges use the preponderance-of-evidence standard of proof when adjudicating cases of sexual assault.
The department's Office for Civil Rights instructed colleges to use this standard in a 2011 Dear Colleague letter. Department officials maintain that the letter merely clarified existing regulations. But critics, including law professors and Republican lawmakers, say the letter actually enacted sweeping regulatory changes -- including requiring that colleges use preponderance of evidence instead of a higher burden of proof -- without first going through the notice-and-comment procedures required by the Administrative Procedure Act.
Last month, more than 80 organizations representing sexual-assault victims, women and minority groups released an open letter saying such arguments "are without merit." In a paper published last week, 90 law professors also defended the department's rules.
The lawsuit is sponsored by the Foundation for Individual Rights in Education. The former University of Virginia student was found responsible of sexual assault last year when the university used the preponderance-of-evidence standard to decide his case, in which he was accused of assaulting an intoxicated woman. He was able to graduate but must complete four months of counseling before he is allowed to work as an attorney, and he is banned from returning to campus. According to the lawsuit, the retired judge who decided the case noted that it was a "very close" and "very difficult" decision, and that her ruling was based on the OCR's requirement that she use "the weakest standard of proof." Until 2011, UVA used a higher standard known as clear and convincing.
"FIRE has spoken with numerous campus administrators nationwide who express frustration that the DCL has impeded their ability to afford accused students due process," FIRE said in a statement. "OKWU, however, has distinguished itself by being the only university in the nation willing to stand up in defense of institutional autonomy and the principles of fundamental fairness and due process."
The UVA lawsuit joins two others recently filed against the department that also argue the department ignored APA requirements and sacrificed due process.
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