Obama’s campus sex rules ‘abuse of power’

By Bob Unruh

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American universities already have paid some $36 million to students who sued after they were injured by federally mandated campus sexual-misbehavior rules that are based on a “preponderance of evidence” standard rather than the conventional “beyond a reasonable doubt.”

Now, the non-profit Foundation for Individual Rights in Education, also known as FIRE, has launched a legal effort against the “sweeping new requirements” imposed by the Department of Education’s Office for Civil Rights five years ago through “Dear Colleague” letters.

The rules allow a student to be expelled for a sexual assault allegation with no right to defense counsel and on the standard that it is more likely than not that he committed the alleged act.

But FIRE believes the government violated the law in the process of issuing the rules. The organization argues that by “unilaterally issuing these binding mandates via a controversial ‘Dear Colleague’ letter,” the Office of Civil Rights “ignored its obligation under federal law to notify the public of the proposed changes and solicit feedback.”

To “begin to fix a broken system of campus sexual assault adjudication that regularly fails all involved,” FIRE is seeking a student or institution to challenge the Education Department’s “abuse of power.”

The organization said it will secure, at no cost to the plaintiff, legal counsel to challenge the agency’s alleged violation of the Administrative Procedure Act.

See what American education has become, in “Crimes of the Educators: How Utopians Are Using Government Schools to Destroy America’s Children.”

Robert Shibley, FIRE’s executive director, said that in the five years since the issuance of the new rules, the Office of Civil Rights “has acted as though the 2011 Dear Colleague letter is binding law – but it isn’t.”

“By circumventing federal law, OCR ignored all stakeholders: victims, the accused, civil liberties advocates, administrators, colleges, law enforcement, and the general public. Real people’s lives are being irreparably harmed as a result. It’s time that OCR be held accountable.”

FIRE has argued that the “preponderance of evidence” standard is found nowhere in America’s criminal justice system.

Last September, Colorado’s openly homosexual member of Congress, Rep. Jared Polis., D-Colo., advocated an even lower standard for expelling students.

“If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people,” said Polis.

Reason.com reported Polis said colleges should remove students even if there is only a suspicion of guilt.

“It certainly seems reasonable that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard,” he said during a House Subcommittee on Higher Education and Workforce Training hearing.

“Perhaps a likelihood standard. … If I was running a (private college) I might say, well, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual,” he said.

See the Polis comments:

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While only four lawsuits were filed against universities in response to their handling of allegations from 2008 to 2010, between 2012 and 2014 there were 18 cases, representing a four-fold increase, according to a report by Stop Abusive and Violent Environments that is touted as the “most comprehensive listing of campus sex lawsuits ever.”

“Nearly all charge the university failed to comply with fundamental due process requirements in adjudicating the claim,” the organization said.

Susan Kruth, a FIRE senior program officer for legal and public advocacy, said “[s]cores of students – both alleged victims and accused students – have sued their institutions after suffering under the faulty systems that OCR has effectively crafted through the DCL.”

“Those who will be affected by new rules must be given the opportunity to comment on their development,” she said. “That’s the best way to create a system through which campus sexual assault allegations will be effectively and fairly addressed.”

OCR must rescind its rules, propose them again and put them through a public notice period, the group said.

“Since it has not done so voluntarily despite a substantial public outcry, the time has come to hold the agency accountable for its unlawful actions. A student or institution harmed by the DCL’s mandates can do this by filing a lawsuit against the agency,” FIRE explained.

WND reported last week an association of professors charged that the federal government’s expanding definitions of sexual harassment under Title IX, the Department of Education’s statute barring discrimination on the basis of gender, threaten free speech.

Alex Morey of FIRE explained that the American Association of University Professors report “says the Department of Education’s Office for Civil Rights (OCR) – the federal agency tasked with enforcing Title IX – has begun enforcing the law to combat sexual offenses on campus, but has employed an overbroad interpretation of prohibited behavior that sweeps within its ambit constitutionally protected speech.”

He likened it to the Obama administration giving colleges a choice: “Comply with our interpretation of Title IX to keep your federal funding, or uphold free speech, due process, and academic freedom on campus.”

WND has reported extensively on the issue, including in January when a member of Congress confronted the Department of Education about imposing new rules for sexual assault cases on campus, and threatening colleges and universities.

See what American education has become, in “Crimes of the Educators: How Utopians Are Using Government Schools to Destroy America’s Children.”

Sen. James Lankford, R-Okla., chairman of the Subcommittee on Regulatory Affairs and Federal Management, sent a letter to John King Jr., the acting secretary of the Department of Education, earlier this year. He instructed the federal bureaucracy to explain exactly what federal law the advisory letters were based on or to make absolutely clear, “in no uncertain terms, that failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or rescission of federal funding.”

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