A former University of Virginia student is suing his former school and the federal government over his expulsion for alleged sexual assault.
The student, listed as John Doe in the lawsuit, was accused of sexually assaulting a female student after a night of drinking. The accuser waited nearly two years to file her report, and filed, conveniently, just two months before Doe was supposed to graduate.
Doe’s degree was withheld while UVa. spent nearly a year investigating the claim, causing him to lose a job offer he planned to take upon graduation. Doe was found responsible by a retired justice of the Supreme Court of Pennsylvania because the evidence tipped “slightly” in favor of responsibility, and because the Education Department’s Office for Civil Rights required her to apply “the weakest standard of proof” available – preponderance of evidence. Still, the retired justice called the case “very difficult.”
She indicated that a higher standard of proof would have meant the student wouldn’t have been found responsible, meaning that OCR’s lower standard of proof directly harmed a student. Activists who laughed when the Foundation for Individual Rights in Education offered to pay the legal bills of a wrongly accused student who wanted to sue the federal government did so because they didn’t believe a student could prove he was harmed by the lower standard of proof.
They were wrong.
But this case is bigger than John Doe. His attorney, Justin Dillon (who has represented numerous accused students) began the lawsuit by detailing the problems with OCR’s “Dear Colleague Letters” that forced colleges to adjudicate sexual assault – a felony – in the first place.
For starters, the mandate from OCR gave schools the clear indication that the truth was secondary to finding accused students responsible in order to avoid negative publicity, the loss of federal funding and an investigation by the federal government. Schools who failed to find accused students responsible (or find them responsible quickly enough) are being investigated by OCR and placed on an unprecedented public list to shame them for allegedly failing to adhere to OCR guidelines. What the schools really aren’t adhering to, however, is the notion that all accused students are responsible.
That is because finding an accused student “not responsible” means the accuser will go straight to OCR and claim the school didn’t take her claim seriously. And OCR will find some way the school violated Title IX – the statute used to justify all of this – in order to keep up its narrative and agenda.
As K.C. Johnson pointed out on Twitter, it’s hard to come up with an innocent explanation for why OCR would publicly name schools it is investigating without giving any details up front as to why the school is being investigated. The only reason for this is to shame the schools into compliance with negative publicity.
The lawsuit lays out directly the problems with OCR’s demands, namely that the demands carry with them the force of law without going through the notice-and-comment period required by the Administrative Procedure Act. OCR’s claim that lowering the standard of proof to preponderance of evidence is justified because some schools had already been using that is not an acceptable reason given the gravity of the situation.
Students accused on college campuses get labeled as “rapists” even though they were not charged or convicted of a crime. Schools do nothing to dissuade this labeling, and it negatively impacts students who have been accused – especially when the evidence against them is nothing more than he said/she said statements.
I urge you to read the entire complaint, which lays out every last issue with OCR’s overreach. This will be an interesting case to watch.
It is also not the first lawsuit of its kind filed against the federal government. Georgia State Rep. Earl Ehrhart filed a similar lawsuit in April, as did a former Colorado State University-Pueblo student. OCR will have to answer for its actions, and stop the evisceration of due process – and commonsense – on college campuses in the wake of campus sexual assault hysteria.
Ashe Schow is a commentary writer for the Washington Examiner.
