SPEAKING OUT FOR DUE PROCESS: Members of civil rights commission oppose ‘disregard for rule of law’ over campus sexual assault rules.
Two members of the U.S. Commission on Civil Rights have written a letter to Congress opposing the budget increase to the Department of Education for sexual assault enforcement they say disregards the rule of law.
Gail Heriot, a law professor at the University of San Diego, and attorney Peter Kirsanow sent the letter last Thursday outlining the dangers of allowing the Department’s Office for Civil Rights to continue adjudicating sexual assaults without providing due process rights to the students involved.
“[W]e have noticed a disturbing pattern of disregard for the rule of law at OCR,” the Heriot and Kirsanow wrote. “That office has all-too-often been willing to define perfectly legal conduct as unlawful.”
“Though OCR may claim to be under-funded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air,” the letter added. “Increasing OCR’s budget would in effect reward the agency for frequently over-stepping the law. It also would provide OCR with additional resources to undertake more ill-considered initiatives for which it lacks authority.”
One example the letter gave of such an overreach is of sexual assault enforcement at colleges and universities.
The letter states that the now-infamous 2011 “Dear Colleague” letter, which sparked the current issues with how sexual assault is handled on campus, required universities to lower the burden of proof used in disciplinary hearings from the “clear and convincing” evidence standard to the “preponderance of the evidence” standard. The lower standard requires administrators to be just 50.01 percent sure the accuser is telling the truth over the accused, which in today’s society where there is immense federal pressure to expel accused students (whether there is even any evidence) makes it all the more dangerous.
The letter stated that nowhere in the text of Title IX, which has been used to justify the school’s need to adjudicate outside the justice system, or in earlier Office for Civil Rights regulations does it state such a low burden be used.
OCR should be defunded. And Congress should have hearings in which university presidents are grilled about the many cases in which falsely accused students were abused.