Suing the Office for Civil Rights

The prospect of the Office for Civil Rights (OCR) being sued has been much in the news lately. Talk began with an announcement from FIRE—on the fifth anniversary of the issuance of the “Dear Colleague” letter—that it was soliciting an accused student to sue OCR. Attorney Andrew Miltenberg then filed two such suits, on behalf of an accused student from Colorado and a state legislator from Georgia.

In a break from the past, the Dear Colleague letter reinterpreted Title IX to grant the federal government authority to order colleges to enact specific disciplinary procedures for handling sexual assault (and sexual harassment) complaints filed by one student against another. Each of the changes ordered or strongly urged by the administration increased the likelihood of a guilty finding; the best-known change required colleges to use the lowest burden of proof, preponderance of evidence (50.01 percent), to determine guilt.

Related: An Illegal Program OCR Won’t Strike Down

OCR issued the Dear Colleague letter without going through a notice-and-comment period, which the Administrative Procedures Act requires for new government regulations. Subsequent claims by OCR head Catherine Lhamon as to why the office pursued this unusual course—that it didn’t need to do so, because the preponderance standard previously had been offered in resolution agreements with two of the nation’s thousands of colleges; or that the Dear Colleague letter merely provided guidance—don’t pass the laugh test. The most likely explanation: the delay caused by notice-and-comment would have ensured that the Dear Colleague letter wouldn’t have appeared until after the 2012 elections, robbing the letter of its value confirming the administration’s identity politics bonafides.

Republicans control 34 of the nation’s 50 governorships; many of these states have been under GOP control for more than a decade. Every state’s higher-ed law is different, but all give at least some control (usually through appointment of trustees) to a governor. Any of these 34 state education boards would have had standing to challenge OCR’s new mandate. Yet none have—a reminder that campus due process has no constituency, and with the exception of Lamar Alexander and James Lankford, the Republican record on this issue is very poor.

Any lawsuit coordinated by FIRE—or the two Miltenberg lawsuits already filed—first will need to survive a challenge on standing that a university threatened by OCR would not face. But the “Dear Colleague” letter not only lowered the evidentiary standard, but also mandated the right of accuser to appeal, pressured colleges to accelerate their adjudication processes, and discouraged cross-examination. So for standing purposes, the likeliest case would involve a student—as in the recent cases at James Madison and George Mason—whose not-guilty finding got overturned on appeal.

More often than not, when universities have lost motions to dismiss in due process lawsuits, they’ve quickly moved to settle the case. The federal government has no incentive to settle, so this litigation likely will be protracted. What would the effects be if any of these lawsuits succeed?

In theory, colleges could return to fairer adjudication systems—they could increase the burden of proof, end the double-jeopardy scenario where not-guilty findings can be appealed, and create more robust investigations. It seems unlikely that many colleges would actually pursue such a course. But the termination of the “Dear Colleague” letter would, at the very least, remove any chance that judges could rely on it—as occurred in the recent Cincinnati decision—to side with universities in due process lawsuits.

Returning to the pre-“Dear Colleague” letter status quo also would allow for a more even-handed discussion of why colleges are legally compelled to adjudicate felony allegations by students in the first place. The recent article by Jacob Gersen and Jeannie Suk uncovered at least one resolution letter, from 2005, in which an OCR regional office made clear that colleges had no obligation to investigate criminal offenses.

Bush-era court decisions to the contrary seemed far more limited than anything the Obama administration has proposed. A decision from the 11^th circuit, for instance, made clear that its findings were dictated by the unusual facts of the case—that the University of Georgia recruited a basketball player who had committed sexual misconduct at his previous school. And the only non-athlete case from the Bush years that foreshadowed the Obama policies—the Kelly case at Yale—featured a judge who seemed to ignore the provisions of the Supreme Court’s 1999 Davis ruling. (You can read materials from the Kelly case file here.)

Progress toward a fairer campus adjudication system—much less a structure where colleges no longer investigate felonies at all—can only occur once the “Dear Colleague” letter ceases to exist. Hopefully the courts will be up to the task.