Mandating Injustice: The Preponderance of the Evidence Mandate Creates a New Threat to Due Process on Campus

By Ellis, Ryan D. | The Review of Litigation, Winter 2013 | Go to article overview

Mandating Injustice: The Preponderance of the Evidence Mandate Creates a New Threat to Due Process on Campus


Ellis, Ryan D., The Review of Litigation


I. INTRODUCTION .................... 65

II. THE DECLINE OF IN LOCO PARENTIS .................... 68

A. The Traditional Law of Education .................... 68

B. Federal Intervention, Title IX and the Role of OCR .................... 70

C. The April 4 Mandate and Its Rationale .................... 76

III. EDUCATION AS A PROPERTY RIGHT .................... 77

A. What Process Is Due? .................... 78

B. Private Universities .................... 80

C. The April 4 Mandate Endangers Individual and Institutional Property Rights .................... 80

IV. A SOLUTION: SUBJECT THE APRIL 4 MANDATE TO POST HOC NOTICE-AND-COMMENT .................... 82

A. The History and Requirements of the APA .................... 82

B. What Regulatory Actions Are Subject to Notice-andComment? .................... 84

C OCR Should Subject the April 4 Mandate to Notice-andComment as a Matter of Law and Policy .................... 87

V. CONCLUSION .................... 89

I. INTRODUCTION

"[M]isery acquaints a man with strange bed-fellows. "

- Shakespeare, The Tempest

On May 7, 2012, in an impressive display of political transcendence and cooperation, twenty of the nation's foremost academics and policy advocates - hailing from across the political spectrum - spoke out with one voice against a threat to individual and institutional rights on university campuses.1 This joint effort to oppose the perceived erosion of student and faculty rights made for strange bed-fellows indeed. But what danger could loom so ominously as to induce parties as diverse as a conservative Christian legal network and a progressive feminist organization to join forces in opposition to it? What attack on individual and institutional rights would prompt arch-conservative David Horowitz and former ACLU president Nadine Strossen to ride side-by-side to their rescue?3 What threat led these scholars and policy advocates to cast aside their political differences, and, if only for a moment, rally together under the banner of campus rights?

The culprit is a policy promulgated by the Department of Education's Office for Civil Rights (OCR) in April 201 1.4 The Department of Education is charged with enforcing Title IX,5 the objective of which is to eliminate sex-based discrimination in education. Sex-based discrimination can include sexual harassment and sexual violence.6 In a "Dear Colleague" letter issued on April 4, 201 1,7 OCR stated that, in order to comply with the strictures of Title IX, all colleges and universities that receive federal funding must use the "preponderance of the evidence" standard of evidence when adjudicating claims of sexual harassment and sexual assault in their disciplinary procedures.8 While OCR's efforts to put an end to sexual harassment and violence on college campuses are commendable, the April 4 mandate has been criticized on the grounds that it restricts the autonomy of universities in an unprecedented way and threatens the property and due process rights of students. Furthermore, critics point out that OCR enacted its new mandate with no input from affected institutions, students, or faculty members,9 a move that arguably violates the notice-and-comment requirements of the Administrative Procedure Act.10

To mark the first anniversary of the April 4 mandate, a group of academics and policy advocates sent a letter to OCR arguing that the mandate "damages student due process rights by mandating that institutions employ our judiciary's lowest standard of proof . . . when hearing sexual harassment and sexual assault cases." In their letter, the signatories argue that mandating a preponderance of the evidence standard is dangerous and inequitable because schools vary widely in the quality of their disciplinary proceedings.1 As a result, students' right to due process is imperiled.13 This Note evaluates these claims by first examining the gradual decline of educational autonomy at American colleges and universities, culminating with the enactment of the April 4 mandate. …

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