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Representative Earl Ehrhart, an influential Georgia lawmaker who chairs the Georgia House Appropriations Subcommittee on Higher Education, filed a lawsuit against the United States Department of Education’s Office of Civil Rights today for their implementation of unconstitutional policy directives regarding sexual misconduct investigations at colleges and universities.

Ehrhart is represented by Andrew T. Miltenberg, Jeffrey Berkowitz, and Tara Davis of Nesenoff Miltenberg Goddard Laskowitz, LLP, as well as Jonathan Hawkins of Krevolin & Horst, LLC.

Chairman Ehrhart, who has been a vocal critic of several wrongful sexual misconduct investigations at the Georgia Institute of Technology, filed the complaint along with his wife, Virginia Ehrhart, on behalf of state and federal taxpayers. In the complaint, Ehrhart states that the enforcement of the “Dear Colleague” letter has resulted in the imposition of unnecessary costs at the expense of both federal and Georgia taxpayers under the threat of federal funding being revoked for the schools’ failure to comply.

“The illegal and unconstitutional directives issued in the Obama Administration’s ‘Dear Colleague’ letter have resulted in a clear disregard for the due process rights of male college students and fostered an environment of male gender bias on campuses throughout the country,” said Ehrhart. “As Chairman of the House Appropriations Subcommittee on Higher Education, I have seen firsthand how colleges and universities, intimidated by OCR’s threat to their federal funding, have set up kangaroo court systems to comply with the Obama Administration’s unconstitutional policies.”

“It is unacceptable that state and federal taxpayers in this country continue to fund these mandates and their attendant costs at higher education institutions,” Ehrhart continued.

According to the complaint, the U.S. Department of Education issued in 2011 what has become known as the "Dear Colleague" letter to every college and university receiving federal funding, addressing their obligation under Title IX to respond to claims of sexual harassment and sexual violence. The 19-page "Dear Colleague" letter contains guidance and directives on how schools are to address sexual assault and misconduct to comply with the Department's view of Title IX. Among other things, the "Dear Colleague" letter dictated that schools use a "preponderance of the evidence" standard rather than the “clear and convincing” standard. The “preponderance of the evidence” standard is a less rigorous standard of proof required by the plaintiff.

"The U.S. Department of Education’s directives have resulted in a deeply-flawed process for sexual misconduct investigations -- as well as an inherent male gender bias — at colleges and universities throughout the country," said Miltenberg. “The Department’s failure to abide by proper rule-making procedures in issuing these directives makes them unconstitutional and ripe for judicial review.”

The complaint states that through their enforcement of the “Dear Colleague” letter, the Administration has forced schools to set up a quasi-legal system to investigate and adjudicate allegations of sexual misconduct; yet, the policies adopted often violate many civil liberties and fail to afford the accused student with the due process protections associated with a criminal trial. As a result, the “Dear Colleague” letter has become a highly divisive document, criticized by law professors, lawyers, educators, journalists, civil liberties groups and members of Congress.

While the U.S. Department of Education designates the “Dear Colleague” letter as a “guidance” document that merely interprets the requirements of Title IX of the Education Amendments of 1972 and its implementing regulation, in actuality, the “Dear Colleague” letter advances new substantive rules and creates binding obligations on the affected parties under threat of severe penalties, including investigation and rescission of federal funding for non-compliant educational institutions. As such, the U.S. Department of Education Office of Civil Rights violated the Administrative Procedure Act (APA) when they intentionally evaded the requisite notice and comment rule-making while nonetheless enforcing the “Dear Colleague” letter as binding law.

The Department’s failure to abide by the proper rule-making procedures has resulted in ongoing unlawful and ultra vires practices and policies which render the “Dear Colleague” letter, and all disciplinary decisions arising therefrom, unconstitutional, arbitrary and void.

“As parents, we are deeply concerned that our son, like any other male student, could be wrongly accused of sexual misconduct under these directives imposed by the ‘Dear Colleague’ letter,” said Ehrhart. “I have heard from many parents of accused male students and understand how unjust, devastating and life-changing the consequences can be.”

This week, Andrew Miltenberg filed a first-of-its-kind lawsuit on behalf of a student athlete suing both Colorado State University Pueblo and the U.S. Department of Education for violating Title IX and his due process rights in a wrongful sexual misconduct investigation.

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