Tag: Dear Colleague

Due Process: FIRE-backed lawsuit challenging Dept of Education’s unlawful Title IX mandate voluntarily withdrawn

By  February 21, 2018

WASHINGTON, Feb. 21, 2018 — Today, attorneys representing the U.S. Department of Education joined with attorneys for plaintiffs John Doe and Oklahoma Wesleyan University to ask a federal court to dismiss a lawsuit challenging the now-withdrawn mandate that colleges and universities use the low “preponderance of the evidence” standard of proof in all sexual misconduct cases. The Foundation for Individual Rights in Education sponsored the June 2016 lawsuit as part of its mission to restore due process to our nation’s campuses.

John Doe and Oklahoma Wesleyan charged that the preponderance mandate did not undergo public notice and comment as required by the federal Administrative Procedure Act and was therefore unlawful.

The joint dismissal stipulation states that the Department of Education “will not rely on the withdrawn documents in its enforcement of Title IX.” It also includes the September withdrawal letter from Acting Assistant Secretary for Civil Rights Candice Jackson, which explained that the mandate in the 2011 “Dear Colleague” letter from the Department of Education “led to the deprivation of rights for many students — both accused students denied fair process and victims denied an adequate resolution of their complaints.”

“Due process is in crisis on our nation’s college campuses, and with unwise and intrusive policies like those in the 2011 ‘Dear Colleague’ letter, the federal government had pushed colleges and universities to make the problem even worse,” said FIRE Executive Director Robert Shibley. “With the preponderance mandate — and now this lawsuit — out of the way, we look forward to working with all parties to ensure that the important fight to combat sexual misconduct on campus is not tainted by due process abuses.”

Justin Dillon and Christopher Muha of KaiserDillon PLLC represented the two plaintiffs: John Doe (a pseudonym), a former student at the University of Virginia School of Law punished under the low preponderance standard, and Oklahoma Wesleyan University, which did not wish to be forced to use the preponderance standard in its own campus proceedings.

“When we filed this case in 2016, we were prepared for a long fight to force the federal government to follow the law,” said Dillon. “I’m very gratified to see that the current administration, after reviewing our lawsuit, decided to do just that and withdraw the previous administration’s unlawful mandate.”

“Fairness and justice with regard to both society and our students have always been foundational principles of Oklahoma Wesleyan University,” said Everett Piper, president of Oklahoma Wesleyan University. “I know that many institutions opposed this unlawful exercise of federal power, but feared risking the ire of a powerful government agency. I am very glad that Oklahoma Wesleyan was able to take a stand on behalf of our fellow institutions of higher education as well as our nation’s students.”

The case is Doe v. Jackson et al. (originally Doe v. Lhamon et al.), 1:16-cv-01158-RC, and was filed in the U.S. District Court for the District of Columbia on June 16, 2016.

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

FIRE’s 2017 year in review for student and faculty rights on campus
PHILADELPHIA, Dec. 28, 2017 — From students shouting down an invited speaker and injuring a professor at Middlebury College in Vermont to the violent Berkeley protests in California, the campus free speech debate swept the nation in 2017. Throw in the withdrawal of the federal government’s controversial “Dear Colleague” letter that for over six years threatened the due process rights of students and faculty accused of sexual misconduct, and it’s easy to see why the offices at the Foundation for Individual Rights in Education were anything but quiet this year.
As 2017 comes to a close, FIRE looks back on a year of challenges and triumphs — a year during which more students and faculty members than ever before approached FIRE to help protect their rights.
“Students and faculty shouldn’t have to appeal to an outside organization like FIRE in order to exercise their speech rights or get a fair shake in campus judicial proceedings, but the sad reality is that they do,” said FIRE Executive Director Robert Shibley. “We worked with policymakers to help inform common-sense legislation and administrators to implement speech-friendly campus policies. And we’ll continue this work until student and faculty rights are secured.”
FIRE’s highlights from 2017 include:
  • FIRE’s Individual Rights Defense Program received more than 900 requests for help from students and faculty members across the country in 2017 — more requests than any other year in FIRE’s history. FIRE’s defense of student and faculty rights took us to Howard University, Fordham University, Wichita State University, University of New Hampshire, Rensselaer Polytechnic Institute, and many more schools this year.
  • In February, FIRE released the first-ever nationwide report on campus Bias Response Teams. These teams encourage students to formally report on one another and on faculty members whenever they subjectively perceive that someone’s speech is “biased.” The report found that 232 public and private American colleges and universities publicly maintained bias response programs, affecting an estimated 2.8 million students.
  • In another win for FIRE’s Stand Up For Speech Litigation Project, the U.S. Court of Appeals for the Eighth Circuit upheld FIRE’s victory at Iowa State University. And in March, the project filed a new lawsuit against the Los Angeles Community College District that aims to free over 150,000 students from unconstitutional free speech zones. The litigation project’s 13 total lawsuits have so far restored free speech rights to more than 270,000 students.
  • In May, Tennessee passed bipartisan legislation that FIRE called “the most comprehensive state legislation protecting free speech on college campuses that we’ve seen be passed anywhere in the country.” The legislation requires institutions to adopt policies consistent with the University of Chicago’s Free Speech Policy Statement, prohibits the use of misleadingly labeled “free speech zones,” bars institutions from rescinding invitations to speakers invited by students or faculty, and more. Campus free speech legislation also passed this year in Colorado, Utah, and North Carolina.
  • In September, FIRE released a first-of-its-kind report on due process at America’s top universities, which found that 85 percent of schools rated received a D or F grade for not ensuring due process rights. Shockingly, 74 percent of top universities do not even expressly guarantee accused students the right to be presumed innocent until proven guilty.
  • Just two days after the due process report was released, the Department of Education announced it would rescind the controversial 2011 “Dear Colleague” letter that threatened the due process rights of students and faculty accused of sexual misconduct on campus. For six and a half years, FIRE led the fight against the misguided letter.
  • Attorney General Jeff Sessions mentioned FIRE’s work in a speech on the importance of free speech at Georgetown University. Sessions highlighted FIRE’s Spotlight database and our lawsuit against the Los Angeles Community College District. The Department of Justice later filed a statement of interest in the lawsuit.
  • In October, FIRE released a groundbreaking survey on free speech that found a majority of students on college campuses self-censor in class, support disinviting some guest speakers with whom they disagree, and don’t know that so-called “hate speech” is usually protected by the First Amendment. The study also found that Republican and Democratic students have different opinions on campus protests, disinvitations, and hate speech protections.
  • FIRE’s So to Speak: The Free Speech Podcast, launched in Spring 2016, released its 50th episode. The bi-weekly show takes an uncensored look at the world of free expression through personal stories and candid conversations. This year the podcast featured Daryl Davis, a black musician who convinces people to leave the Ku Klux Klan through open dialogue; the all-Asian rock band The Slants, who took their free speech fight all the way to the Supreme Court and won; and Nadine Strossen, former president of the ACLU, on the white supremacist rally in Charlottesville.
  • Earlier this month, Emory University became the 11th institution to earn FIRE’s highest, “green light” rating in 2017, bringing the total number of green light institutions to 37.
  • And just last week, FIRE released its annual Spotlight on Speech Codes report, which found that the number of colleges with FIRE’s poorest, “red light” rating for maintaining speech codes that both clearly and substantially restrict freedom of speech is down to 32.3 percent — seven percentage points lower than last year and almost 42 percentage points lower than in FIRE’s 2009 report.
“For the tenth year in a row, the most harmful speech codes are coming off the books throughout the country,” said Shibley. “But the growth of bias response teams, the continued disinvitation of invited speakers and — most alarmingly — the violence on too many campuses show us that we have a lot of work to do in 2018 and beyond.”
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.