On September 7, 2017, Betsy DeVos, the Secretary of Education, announced that the United States Department of Education intended to revisit the “Dear Colleague” letter that the Department’s Office for Civil Rights, or “OCR,” issued on April 4, 2011. Although over the years OCR has issued a number of these often draconian Dear Colleague letters, there are few – if any — that have garnered more attention or spawned more litigation than this particular directive.  The genesis of the April 2011 letter was growing concern that colleges and universities were not affording appropriate attention to claims of student-on-student sexual misconduct, including sexual assaults.  In the letter’s wake, however, a number of schools were accused of dismantling procedural protections , resulting in an increasing number of lawsuits from students who generally alleged that educational institutions had effectively replaced indifference to the rights of female students to be free of sexual harassment with a gender-based predetermination that male students accused of misconduct were most likely guilty.

Of particular concern to critics of OCR’s April 4, 2011 guidance was its insistence that when adjudicating sexual misconduct cases, universities and colleges employ a preponderance of the evidence standard, which is the lowest evidentiary standard employed by courts or administrative tribunals. For example, in Plummer v. University of Houston, Judge Edith Jones of the United States Court of Appeals opined that the more appropriate standard would be clear and convincing evidence, which requires a showing that it was highly probable – as opposed to more likely than not — that the alleged misconduct occurred.  Judge Jones also faulted the fact that OCR’s April 2011 directive strongly discouraged cross examination, and generally precluded accused students from being represented in any meaningful manner by legal counsel.

In the April 4, 2011 Dear Colleague Letter, OCR justified the preponderance of the evidence standard by noting that it was used in federal court cases alleging “violations of the civil rights laws.” OCR’s analogy, though, was imperfect.  As the plaintiffs in John Doe & Oklahoma Wesleyan University v. Candice Jackson, et al., which is currently pending in the United States District Court for the District of Columbia, astutely note, defendants in civil rights litigation enjoy protections – such as discovery, the federal rules of evidence, and the right to cross-examine plaintiffs and their witnesses – that are not provided to students facing school-based disciplinary panels.  Thus, the benefit of the lower evidentiary standard that accrues to plaintiffs in court cases is offset by the defendants’ ability to better defend themselves through depositions and other pre-trial discovery, the exclusion of hearsay and other inappropriate evidence, and the right to directly confront and challenge their accusers.

The Doe v. Jackson case appears to have informed Secretary DeVos’ announcement.  In Doe, a former University of Virginia law student deemed to have engaged in sexual misconduct, and Oklahoma Wesleyan University — which eschews OCR’s preponderance of the evidence standard and preclusion of cross examination — filed suit against OCR.  In their extremely well-crafted Amended Complaint, the plaintiffs alleged that the April 4, 2011 letter violated the federal Administrative Procedures Act, or “APA.” Specifically, the plaintiffs claimed that the April 2011 directive constituted “rule making,” and was therefore subject to the APA’s requirements that OCR provide notice of such proposed rule and provide an opportunity for public comment, neither of which OCR did.

The plaintiffs further alleged that OCR’s mandate that schools employ the preponderance of the evidence standard in sexual misconduct proceedings exceeded its authority to enforce Title IX’s antidiscrimination mandate. The Doe plaintiffs reasoned that both males and females can be and are the subject of disciplinary proceedings – which was true in Plummer – and that evidentiary standards are not predicated upon gender or sex. In other words, educational institutions do not assign different evidentiary burdens depending upon the gender of the accused student. Therefore, as there is no gender-driven dichotomy in evidentiary standards, OCR’s assertion that the preponderance of the evidence standard is an intrinsic part of remediating gender discrimination is baseless.

The Doe plaintiffs’ contentions have resonated within the United States Department of Education. On August 11, 2017, OCR filed an unopposed motion to hold the Doe case in abeyance, noting that with the change in Administration, OCR was reviewing the April 2011 Dear Colleague Letter. Subsequently, on September 7, 2017, Secretary DeVos questioned OCR’s history of issuing Dear Colleague Letters without first subjecting them to the same notice and comment requirements cited by the Doe plaintiffs. Promising that the “era of ‘rule by letter’ is over,” Secretary DeVos announced that OCR will initiate notice and comment regarding the proper standards for addressing campus-based sexual misconduct claims, with the intent of obtaining the “insights of all parties.”

What Does It Mean?

OCR’s April 2011 Dear Colleague Letter compelled schools to pay greater attention to claims of campus-based sexual assault, an undeniably laudatory outcome. Unfortunately, it also lead many colleges and universities – justifiably fearing OCR’s often heavy hand – to strip-mine basic procedural safeguards out of their disciplinary hearing process, triggering numerous lawsuits by students judged to have violated sexual misconduct policies. To paraphrase Judge Jones in Plummer, for a school to “degrad[e] the integrity of [the] fact-finding procedures, while congratulating itself for vigorously attacking campus sexual misconduct” serves neither the interests of the victims nor of the accused, a sentiment which now appears to be shared by Secretary DeVos.

There are, of course, no guarantees that OCR will ultimately rescind or modify its April 4, 2011 Dear Colleague Letter, but given its motion to stay the Doe case and Secretary DeVos having echoed the allegations in Doe, it is highly likely that changes are coming.