By Robin Hattersley Gray · September 6, 2011
I recently came across this press release from Robert W. Smith of the law firm of LeClairRyan. It covers the ramifications Smith believes are posed by the U.S. Department of Education’s Office of Civil Rights’ recently published “Dear Colleague” letter on sexual violence in educational institutions. Smith claims the guidelines put unfair legal burdens on school administrations and fail to recognize the complex and often-difficult realities involved in these cases.
Here are some excerpts from Smith’s release:
“If the matter at hand is a minor traffic accident, a breakdown of due process might be unfortunate, but it would not be life-shattering for the party found to be at fault,” writes [Smith, who is a defense attorney for institutions of higher education]. “In matters as serious as rape or sexual harassment, however, due process, if anything, is more critical, not less. Any competent detective will tell you that these cases often reduce to ‘he said, she said’ arguments and involve complex questions relating to anonymity, racial bias, intoxication, subjective interpretation of sexual intent and behavior, and more.”
Back in April, the U.S. Department of Education’s Office of Civil Rights (OCR) issued a letter ordering colleges and universities to get more aggressive about investigating and prosecuting alleged incidents of sexual assault and harassment. But while the 18-page missive began with the cordial salutation “Dear Colleague,” it was in fact a legally binding regulatory document that set new standards without ever making use of public hearings, comment periods or other important due diligence mechanisms, says Smith.
In the column, he notes that the letter calls for dropping higher evidentiary requirements in favor of the lesser “preponderance of the evidence” standard, and that this could tip the scales of justice toward plaintiffs in ways that undermine the rights of the accused. He also criticizes the letter’s stipulation that colleges and universities resolve these cases within 60 days. “While I agree that justice delayed is often justice denied, the complex nature of an investigation into a sexual assault case does not admit of a neat resolution within 60 days,” Smith writes. “Simply put, OCR’s directive seems rooted in ignorance of the nature of these cases.”