Education Secretary Takes Aim at Federal College Discipline Rules

In a major speech today, Education Secretary Betsy DeVos indicated that the Education Department may withdraw some of the regulatory “dark matter” discussed by CEI’s Wayne Crews, such as its April 4, 2011 “Dear Colleague” letter micromanaging college discipline.

Crews’ 2016 congressional testimony described how agencies violate the Administrative Procedure Act by issuing “dark matter”—binding rules that have not gone through the notice and comment process mandated by federal law. As examples, he gave the Obama Education Department’s 2011 Dear Colleague letter about sexual assault and harassment, and its October 26, 2010 letter about school bullying.

Secretary DeVos apparently agrees. She said that:

For too long, rather than engage the public on controversial issues, the Department’s Office for Civil Rights has issued letters from the desks of un-elected and un-accountable political appointees….

Washington dictated that schools must use the lowest standard of proof….

The era of “rule by letter” is over.

Through intimidation and coercion, the failed system has clearly pushed schools to overreach. With the heavy hand of Washington tipping the balance of her scale, the sad reality is that Lady Justice is not blind on campuses today.

Her reference to “the lowest standard of proof” refers to a demand made by the Obama administration’s April 4, 2011 “Dear Colleague” letter. It demanded that colleges and schools use a “preponderance” standard rather than a “clear and convincing evidence” standard for one category of accusations: sexual harassment or assault. This demand is legally suspect, since colleges should be able to use either burden of proof if they choose.

A generation ago, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As James Picozzi noted in 1987 in the Yale Law Journal, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987).

As a result of the 2011 Dear Colleague letter, Ivy League universities such as Cornell, Princeton, Yale, and Harvard Law School lowered the burden of proof in sexual harassment and assault cases. Although colleges stopped using the clear-and-convincing standard for harassment and assault allegations, many of them (such as Duke University, or the University of Virginia’s Honor System) still use a higher burden of proof for other types of allegations, such as vandalism, non-sexual assaults, or honor code violations

The Education Department’s April 4, 2011 “Dear Colleague” letter also urged colleges to restrict cross-examination in sexual harassment and assault cases. As its Office for Civil Rights (OCR) put it in that letter, “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” When schools take that advice, it can violate a student’s rights under a state’s Administrative Procedure Act (APA).  Under some state APAs, students have a right to cross-examine their accuser, as courts have made clear in cases such as Arishi v. Washington State University, 385 P.3d 251 (Wash. App. 2016) and Liu v. Portland State University, 383 P.3d 294 (Or. App. 2016). The U.S. Supreme Court has called  cross-examination the “greatest legal engine ever invented for the discovery of truth” in its decision in Lilly v. Virginia, 527 U.S. 116, 124 (1999).-

Read more of this CEI blog post by Hans Bader by clicking here.

Photo: Mike Theiler/Reuters