By Blake Neff
The country’s biggest advocate for civil liberties on U.S. campuses has filed a lawsuit that could blow up a key plank in the Obama administration’s campaign against college sexual assaults.
The Foundation for Individual Rights in Education (FIRE) is backing a lawsuit by John Doe, an anonymous former University of Virginia (UVA) law student who in January 2016 was found responsible for assaulting a female student during an alcohol-fueled sexual encounter back in 2013. Doe contends that the encounter was perfectly consensual and that his female counterpart showed no signs of being impaired by alcohol, let alone incapacitated.
While Doe was still allowed to receive his law degree, his degree was held up for a year, he has been banned from UVA’s campus for life, and his sexual assault finding is included on his school transcript. Instead of suing UVA, Doe and FIRE are going after the Obama administration, arguing that illegal Department of Education policies are responsible for damaging Doe’s legal career.
Specifically, the lawsuit targets the Office for Civil Rights’ 2011 Dear Colleague Letter, which ordered all colleges to adopt a low “preponderance of the evidence” standard for adjudicating sexual assault cases. Prior to the letter, UVA had adjudicated sexual assault cases under the higher “clear and convincing evidence” standard. The retired judge who handled Doe’s case made it clear that her decision to find Doe responsible was primarily based on the low burden of proof, indicating that if UVA was still using its old standard, prior to federal meddling, he wouldn’t have been found responsible.
The lawsuit argues that the Obama administration’s decree on sexual assault hearings was illegal, because it was simply announced in a letter rather than going through the ordinary regulatory prospects specified by the Administrative Procedures Act.
“Campus sexual assault is a serious problem,” attorney Justin Dillon, who is representing Doe, said in a statement. “But OCR doesn’t get to break the law in order to solve it.”
At stake is a key plank in the Obama administration’s lengthy crusade against an alleged “epidemic” of campus sexual assault. The administration has placed heavy pressure on colleges to more aggressively crack down on assault, but critics say the administration’s efforts are simply undermining due process for accused students.
The lawsuit says the Obama administration further hurt students’ due process rights by using a “blitzkrieg” strategy that aggressively pressured schools to get in line on sexual assault or else find themselves added to a much-publicized list of schools under investigation for Title IX violations. This blitzkrieg strategy, the suit says, encouraged schools to hastily create kangaroo courts that didn’t respect students’ rights and encouraged unjust suspensions and expulsions.
FIRE’s case isn’t the first lawsuit to explicitly target the Obama administration’s sexual assault policies. In April, a similar lawsuit was filed by Grant Neal, a student kicked out of Colorado State University-Pueblo for allegedly sexually assaulting a girl, even though he says the girl herself has consistently denied ever being assaulted.