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Members of civil rights commission oppose 'disregard for rule of law' over campus sexual assault rul


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.

"[G]iven the importance of safeguarding the rights of accused students, the 'clear and convincing' standard would seem to be the more appropriate one in at least some situations," the letter said.

Another problem with the way the federal government now requires colleges to handle sexual assaults, the letter stated, was the strong discouragement of allowing students to cross-examine their accusers.

"Yet one federal district court has held that cross-examination is constitutionally required on due-process grounds when an accuser's credibility is an important issue in a disciplinary proceeding," the letter said.

The two members of the eight-member commission also note how professors at Harvard Law and the University of Pennsylvania have also written in opposition to the lack of due process employed by the Office for Civil Rights' requirements.

One of the most dangerous aspects of the Office for Civil Rights' control over the matter, which the letter noted, was the office's "frequently used tactic" of "launch[ing] an investigation of a school that it has reason to believe is out of compliance with its announced policies." Those "investigations" seem to always result in finding the schools in violation of OCR policy.

"The investigations are thus a punishment in and of themselves," the letter said. "The institution must hire attorneys, make staff and students available for interviews, and produce voluminous records for OCR. The institution suffers the reputational harm of being branded as having engaged in or tolerated racial discrimination or sexual harassment."

"When OCR finally offers the institution a settlement in lieu of going to court, the institution frequently has no alternative but to accept," the letter added. "But this means that OCR is almost never seriously challenged, and the courts never have the opportunity to rule OCR's guidance out of bounds."

Further, "Individual students who are disadvantaged by OCR's policies either would not have standing to challenge them or would not have the resources and grit to endure being dragged through the courts for years."

The letter requests Congress take action to avert the "overreach" from the Office for Civil Rights.

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