December 2, 2015

CIVIL RIGHTS UPDATE: Rights group sends letter to Ed Dept. opposing affirmative consent.

The Foundation for Individual Rights in Education has sent a letter to the Education Department formally opposing affirmative consent, or “yes means yes,” policies at colleges and universities.

FIRE has written against the use of yes-means-yes policies previously, as the rules define nearly all sex as rape and provide little recourse for accused students to prove their innocence.

“Given [the Education Department’s Office for Civil Rights’] repeated acknowledgment that colleges’ and universities’ implementation of Title IX should not impinge on students’ due process rights, the agency should clearly and publicly censure any consent standard — including the ‘affirmative consent’ standard — that seriously undermines an accused student’s ability to defend himself or herself in a fair hearing,” wrote FIRE’s senior program officer, Susan Kruth.

Kruth pointed to an “insufficient notice of what behavior is prohibited or required” as one of the problems with affirmative consent. Kruth notes the court case Grayned v. City of Rockford, in which the Supreme Court wrote that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”

Affirmative consent standards, Kruth argues, do not provide such an opportunity. She wrote that the policies “suffer from being both overly broad and vague,” and that the policies themselves are disputed even among supporters.

FIRE is doing great, and much-needed work. If you’re planning any year-end charitable contributions, you ought to consider donating to them.

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