Dear Colleague letter on campus sexual harassment

 

The Department of Education, Office of Civil Rights (OCR) “Dear Colleague letter” addressing sexual harassment and violence on college and university campuses aggressively pushes colleges to deny their students essential due process rights or lose federal funds.  The “guidance” went well beyond OCR’s authority under federal civil rights law and may have had many counterproductive effects. Although campus sexual harassment and violence is an important concern, the expansive requirements deny due process, threaten protected First Amendment speech, and force schools to address some conduct that they are ill-equipped to handle. One problematic instruction to colleges was to change the burden of proof in sexual harassment or violence investigations to a mere “preponderance of the evidence” standard instead of the “clear and convincing evidence” standard. The preponderance standard of proof is even more questionable because the colleges are encouraged to deny other due process rights to the accused, including the right to know most of the evidence against them. For example, the DCL “strongly discourages” schools from allowing cross-examination of witnesses and restricts the role of legal counsel, denying students’ fundamental due process protections. Federal courts are increasingly criticizing such one-sided proceedings which follow the OCR DCL.