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College to Sue Fed. Govt over Low Evidence Standard in Rape Cases

Oklahoma Wesleyan University is joining a lawsuit against the Office of Civil Rights over a statute that allows students to be deemed guilty of rape by universities by only a “more likely than not” preponderance standard.

Oklahoma Wesleyan University, an evangelical school in Bartlesville, Oklahoma, is joining together with the Foundation for Individual Rights in Education (FIRE) in bringing this case to the courts. Their suit alleges that the Office of Civil Rights disregarded their legal obligations by imposing legal changes without going through the mandatory notice-and-comment rulemaking procedure.

The suit stems from an incident at the University of Virginia Law School, where a student was expelled based upon the “more likely than not” preponderance standard that was established in 2011 by the federal Office of Civil Rights in a “Dear Colleague” letter (DCL).

Susan Krath of FIRE detailed how the Office of Civil Rights’ ignored legal obligations in making the change to the mandate:

OCR’s disregard for its legal obligations under the APA deprived institutions like OKWU of the opportunity to provide feedback regarding the efficacy and potential repercussions of the mandate before it was imposed on them, and ultimately of the ability to decide for themselves how best to protect the rights of their students.

FIRE has spoken with numerous campus administrators nationwide who express frustration that the DCL has impeded their ability to afford accused students due process. OKWU, however, has distinguished itself by being the only university in the nation willing to stand up in defense of institutional autonomy and the principles of fundamental fairness and due process.

A statement released Monday night by Oklahoma Wesleyan University argued that the “more likely than not” preponderance standard is “unconstitutional” and a violation of “due process and confidentiality of the legal process.”

OKWU has distinguished itself by being the only university in the nation willing to stand up in defense of institutional autonomy and the principles of fundamental fairness and due process. “Many colleges have complained that the Department of Education unilaterally and illegally exceeded its authority when it issued the Dear Colleague Letter,” said Robert Shibley, Executive Director of FIRE, “but only Oklahoma Wesleyan has taken the steps to challenge the federal government’s overreach. Advocates from across the political spectrum agree that the Department of Education’s Title IX expansion has illegally limited students’ constitutional rights and has put colleges and universities in an untenable position. Now, Oklahoma Wesleyan is reminding the federal government that following the law is not optional.”

Tom Ciccotta is a libertarian who writes about Free Speech and Intellectual Diversity for Breitbart. You can follow him on Twitter @tciccotta or email him at tciccotta@breitbart.com

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