Trials and Litigation

Law grad sues Department of Education over its guidance on campus sexual-misconduct investigations

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A University of Virginia Law School graduate, whose degree and job with a Washington, D.C., law firm were delayed because of a sexual-misconduct investigation of him by the university, has sued the U.S. Department of Education, claiming it improperly changed the standard of proof in such matters, the Washington Post reports.

The suit (PDF) filed by “John Doe” in the U.S. District Court for the District of Columbia alleges that the department’s Office for Civil Rights should have gone through a formal rulemaking process, with notice for public comment, before providing guidance in a 2011 letter that colleges and universities receiving federal funds should use a “preponderance of the evidence” standard of proof during campus sexual-misconduct disciplinary proceedings. Preponderance of evidence is the standard used in civil lawsuits that seek to enforce federal civil rights laws.

The “Dear Colleague” letter was sent by the OCR to educational institutions as part of the Obama administration’s response to increases of allegations of rape and sexual assaults on campuses. It warned that failure to use the preponderance of evidence standard would be a violation of Title IX of the Education Amendments of 1972. Prior to the letter, the University of Virginia used a “clear and convincing evidence” standard of proof.

The adjudicator in the university’s sexual assault hearing last January, a retired Supreme Court of Pennsylvania justice, found for the complainant, “Jane Roe,” who also was a law student at U.Va. at the time of the incident in 2013. Jane Roe said she was too incapacitated by alcohol at the time to consent to sexual relations. Doe responded that he didn’t think she was intoxicated at all.

According to the lawsuit, the adjudicator noted in a letter that it was a “very difficult case” and that she had applied the preponderance of evidence standard. Doe was ordered to take four months of counseling and banned for life from U.Va. properties and activities. Doe passed a bar exam in the summer of 2015, but the sexual assault case wasn’t finalized until January 2016. A spokesman for U.Va. told the Post that student privacy laws did not allow the university to comment on the case.

The suit is sponsored by the Foundation for Individual Rights in Education, which battles so-called speech codes on campus and what it believes are breaches of students’ and teachers’ civil rights—in this case, due process.

The OCR “needs to do what federal law requires—tell the American people what it wants to accomplish, ask them for their feedback, and only then make a decision,” Justin Dillon, who represents Doe, told the Post.

The lawsuit also alleges that by publicizing the list of schools under investigation for violating students’ Title IX rights, the OCR was putting pressure on those institutions to violate the rights of accused students. There were 55 schools on the list when it became public in the spring of 2014. Now there are 192.

Doe is seeking to have the court issue a declaratory judgement against the OCR for violating the Administrative Procedures Act because the “Dear Colleagues” letter was not submitted for public comment and overstepped the body’s authority. He is also seeking an order enjoining the OCR “from requiring schools to abide by any of the mandatory requirements” in the 2011 letter, including the use of the preponderance of evidence standard. He asks also for reimbursement of his attorney fees and expenses and “such further and additional relief as this court may deem just and proper.”

Laura L. Dunn, the founder and executive director of SurvJustice, which advocates for victims of sexual violence, told the Post that the Doe case is stronger than others she’s seen. But she says she believes the Department of Education did have the authority to offer guidance on the standard of proof that should be required.

The 2011 letter “was my personal moment of justice as a survivor, that what happened to me would never happen to anyone else,” says Dunn, a lawyer.

A Department of Education spokeswoman directed the Post to 2014 testimony by Assistant Secretary Catherine Lhamon (a named defendant in the suit) of the OCR, in which she said in part:

“When universities fail to respond adequately to campus sexual assault, they may be forcing the affected students to attend school in a sexually hostile environment. This environment deprives them of their freedom to go to class without being re-traumatized by a perpetrator sitting a few seats away, walk on campus without being harassed by a perpetrator’s friends, attend a party on-campus, or even feel safe in their own dorm rooms. … I am pleased to see that many colleges and universities are stepping up to the challenge of addressing the problem of sexual assault. For example, within months of the release of the Department of Education’s Office for Civil Rights 2011 Dear Colleague Letter on sexual violence, many colleges and universities revised their sexual violence policies and procedures consistent with our guidance. We applaud these schools for taking the initiative to keep their students safe without waiting for enforcement intervention from my office or from the Department of Justice.”

Related article:

ABA Journal: “Lawyers are dealing with changing rules on college sexual assault”

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