Dear Colleague Letters Come Under Fire | KingSpry

OCR Lawsuits: Dear Colleague Letters Come Under Fire

Posted on January 18th, 2017
by Dr. Kathleen Conn

The Office for Civil Rights (OCR) of the U.S. Department of Education (USDOE) has been under increasing fire about the authority of its “significant guidance documents,” informally titled “Dear Colleague Letters (DCLs).”

Some of the most controversial of the recent DCLs, the 2011 DCL on Sexual Violence and the 2014 Q & A on Title IX and Sexual Violence, have prompted questions about the authority of OCR to issue binding regulations without providing the notice and public comment opportunities traditionally required before rulemaking. 

The 2016 DCL has prompted District Justice Reed O’Connor of Texas to issue a nationwide injunction releasing public schools from complying with the 2016 OCR “guidance,” and the U.S. Supreme Court is poised during this current term to decide the question of which standard of deference applies to an OCR letter. Now a former University of Virginia (UVA) Law School student and a private Oklahoma university are suing OCR’s current leader and spokesperson Catherine Lhamon over OCR’s mandate that colleges and universities use the preponderance of evidence standard in disciplinary proceedings involving alleged sexual assaults.

The basis of the current lawsuit against OCR is John Doe’s assertion that in January 2016 he was unfairly found guilty of 2013 sexual assault of a UVA female who claimed she was too drunk to give consent for sex. The adjudicator in the case blamed her assignment of Doe’s guilt on the “flimsy” standard dictated by OCR in the case, the preponderance of evidence standard.

The preponderance of evidence standard requires that it is “more likely than not” that a reported incident occurred, in contrast to the more rigorous “clear and convincing evidence” standard of proof.

Numerous lawsuits have been filed by young men alleging that they have been wrongly labelled as sex offenders as a result of OCR’s insistence that college and university disciplinary boards use the preponderance of evidence standard of proof in assigning guilt in sexual assault cases.

In the current suit, Oklahoma Wesleyan University (OKWU) joined Doe to argue that colleges and universities should be free to set their own disciplinary standards. Doe and OKWU filed an Amended Complaint on August 15, 2016 alleging that by insisting that colleges and universities use the preponderance of evidence standard, Lhamon, the OCR, and the USDOE are making regulations that have the force of law, which under the provisions of the Administrative Procedures Act (APA), requires prior public notice and an opportunity for the public to comment. The lawsuit calls OCR’s efforts to deal with sexual assaults on campus a “veritable blitzkrieg” that is unfortunately “equal parts zeal and hubris.”

The complaint notes that by June 2016 OCR had opened 195 investigations in postsecondary institutions for not following its “guidance” with respect to Title IX and sexual assaults. The amended complaint states that OCR’s threat to withdraw the over $100 billion of federal dollars that currently flows to colleges and universities for complying with Title IX provisions is substantive rulemaking that bypasses several sections of the APA, and is an arbitrary and capricious action.

Lhamon and USDOE responded in a Memorandum in Support of Defendant’s Motion to Dismiss on September 1, 2016. They argued that Doe lacks standing to sue because the relief he seeks would not redress any of his reputational injuries nor UVA’s sanction of a lifetime ban from campus. Moreover, they assert that OKWU cannot establish that OKWU would likely ever be charged with non-compliance with the 2011 and 2014 DCLs because its President Everett Piper has vehemently argued that OKWU would turn over any adjudication of a sexual assault complaint to local law enforcement rather than allow a disciplinary proceeding by a “committee of faculty, staff, and students who are untrained amateurs.” Lhamon’s 46-page Memorandum cited no fewer than 50 case citations and numerous Constitutional and regulatory citations.

However, its affirmative argument devolved to a naked assertion that OCR seeks “prompt and equitable” resolution of complaints of sexual discrimination and that means use of the preponderance of evidence standard is necessary. That interpretation, the Memorandum states, “imposes no legal obligations beyond those imposed by the [Title IX] regulation itself,” and therefore is not a legislative rule.

Whatever the merits of the respective arguments, both the Doe/OKWU amended complaint and the Lhamon/USDOE memorandum avoid a critical issue.

Whether the OCR “significant guidance” of 2011 or 2014 violated the APA or not, both DCLs ignore a controlling federal law and its published regulations: Section 304 of the Violence Against Women Reauthorization Act (VAWA) of 2013 and its Final Rule for Section 304 issued on October 20, 2014. VAWA and its regulations  require that institutions of higher education “include a statement of the standard of evidence” used in campus disciplinary proceedings for complaints of sexual assault. Section 304 adds additional reporting requirements to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) of 1990, but allows educational institutions to decide how to provide a prompt, fair, and impartial investigation and resolution of claims of sexual assault.

Nowhere in the Act’s reauthorization itself, nor in its regulations, is the preponderance of evidence standard mandated. Colleges and universities, according to VAWA 2013, are free to use the “clear and convincing evidence” standard or any standard they deem appropriate to their own institutional character and mission.

An interesting note is that the original 1994 VAWA had included a preponderance of evidence standard in its civil rights remedy provision. However, in 2000 that section of VAWA was declared unconstitutional on federalism grounds by the Supreme Court in United States v. Morrison. The Final Rule for Section 304 of VAWA was subject to wide notice and comment, with over 2200 commenters and over 3000 signers to an American Association of University Women letter indicating overall support for strengthening the Clery Act.

The negotiators for the Final Rule were adamant that prescribing the preponderance of evidence standard was not Congress’ intent. However, OCR’s guidance documents appear to be eclipsing the mandates of Section 304.

How the Supreme Court rules on the question of deference to OCR guidance letters in the Gloucester County case will be critical to resolution of the Doe/OKWU suit and to all other so-called “guidance” from OCR. Colleges and universities, as well as K-12 educational institutions, would do well to keep abreast of continuing developments.


This Collegiate Comment is a publication of the KingSpry Higher Education Law Division. It is meant to be informational and does not constitute legal advice.