OCR’s Title IX Guidance Under Attack
Backed by the Foundation for Individual Rights in Education (“FIRE”), a former University of Virginia law student filed a federal lawsuit against the Department of Education on June 16, 2016 in a direct challenge to the guidance offered in the Office for Civil Rights’ 2011 Dear Colleague Letter. The lawsuit objects to OCR’s requirement that institutions use a preponderance of the evidence standard in adjudicating reports of sexual misconduct. Other lawsuits, notably one filed against Louisiana State University by a former professor, have narrowly argued that OCR’s Title IX guidance violates First Amendment free speech in the public institution context. This lawsuit, however, attacks the guidance broadly and contends that in promulgating the guidance without a notice and comment period, the Department of Education violated the Administrative Procedures Act, which renders the guidance null and void.
The plaintiff contends in the lawsuit that as a result of the guidance, UVA moved from a “clear and convincing” standard of evidence to the now-required “preponderance” standard. He argues that, but for OCR’s improperly-promulgated guidance, he would not have been found responsible, nor disciplined for his alleged conduct. Unlike most similar suits, the plaintiff does not name UVA as a defendant, and instead has sued only the Department of Education, OCR, and its chief officers.
We will continue to track these and other challenges to OCR’s Title IX guidance.
This article appears in the Summer 2016 edition of Saul Ewing’s Higher Education Highlights newsletter. Click here to see the complete newsletter.