Tuesday, May 8, 2012

'By mandating that institutions use the weak preponderance of the evidence standard, OCR has undermined the reliability, integrity, and basic fairness of disciplinary proceedings and invited error.'

FIRE and 19 other signatories have written a letter urging the Department of Education's Office for Civil Rights (OCR) to address the threats to student rights posed by OCR's "Dear Colleague" letter regarding sexual harassment and sexual assault on campus.  Here is an excerpt:

"[T]he [Dear Colleague Letter] damages student due process rights by mandating that institutions employ our judiciary’s lowest standard of proof, the 'preponderance of the evidence' standard, when hearing sexual harassment and sexual assault cases. The Supreme Court has unequivocally held that when “a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” due process requires “precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.” Goss v. Lopez, 419 U.S. 565, 574, 580 (1975) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). Adjudicating accusations of serious sexual misconduct requires equally serious procedural protections. By mandating that institutions use the weak preponderance of the evidence standard, OCR has undermined the reliability, integrity, and basic fairness of disciplinary proceedings and invited error. Given the divergence in quality and competency of school disciplinary hearings and the potential for life-altering punishment, it is unconscionable to require that those accused of such serious violations be found merely 'more likely than not' to have committed the offense in question. If OCR is to mandate an evidentiary standard for the adjudication of allegations of sexual harassment and sexual assault, it must be no less protective of the rights of the accused than the 'clear and convincing' standard."

(Emphasis added.) http://thefire.org/article/14464.html

Do not hold your breath waiting for a response: FIRE has written two other letters to the OCR about the Dear Colleague letter and has yet to receive the courtesy of a response.