Dept. of Education Should End ‘Double Jeopardy’ Complaint Provision

Earlier, I wrote about how the Trump administration should end the Education Department’s micromanagement of college discipline. But I overlooked one form of micromanagement that needs to be fixed.

On April 4, 2011 the Education Department’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter demanding that colleges not allow students or faculty accused of sexual harassment to appeal findings of guilt unless they also allowed complainants to appeal not-guilty findings — a position that some critics viewed as akin to double jeopardy. 

This demand ignored OCR’s own past agency rulings to the contrary, even though “unexplained departures from precedent” violate the Administrative Procedure Act, and are arbitrary and capricious.

Before the Obama administration, OCR had stated that “there is no requirement under Title IX that a [school] provide a victim’s right of appeal.” (See University of Cincinnati, OCR Complaint No. 15-05-2041 (Apr. 13, 2006)).

Under the Clinton administration, OCR had approved a school’s limiting appeal rights to the accused because “he/she is the one who stands to be tried twice for the same allegation.” (See Skidmore College, OCR Complaint No. 02-95-2136 (Feb. 12, 1996)).

Similarly, under the Bush administration, OCR had concluded that “appeal rights are not necessarily required by Title IX, whereas an accused student’s appeal rights are a standard component of University disciplinary processes in order to assure that the student is afforded due process before being removed from or otherwise disciplined by the University.” (See Suffolk University Law School, OCR Complaint No. 01-05-2074 (Sept. 30, 2008)).