A former law student at the University of Virginia accused of sexual assault filed a lawsuit against the U.S. Department of Education on Thursday, saying the federal government violated the law when it issued new guidance for how schools should handle sexual violence.
Unlike most lawsuits from students accused of sexual assault, the case does not name UVA as a defendant and focuses solely on the Department of Education.
The federal complaint claims that the Education Department violated the Administrative Procedure Act in 2011 when its Office for Civil Rights issued a "Dear Colleague" letter containing new guidance on adjudicating sexual assault and harassment claims. The letter was addressed to all colleges, universities and K-12 schools that receive federal funding.
Under the gender equity law Title IX, schools must address reports of sexual harassment and assault. Among other things, the OCR letter told schools to use a standard known as "preponderance of evidence" to determine an accused student's guilt. In other words, the adjudicator must be at least 51 percent certain that an individual committed a violation to find the person guilty.
Yet lawyers for the former UVA student say the government failed to give stakeholders a chance to respond to the federal guidelines -- including the preponderance standard -- before they were issued, as required by law.
"Campus sexual assault is a serious problem, but OCR doesn't get to break the law in order to solve it," Justin Dillon, an attorney handling the case, said in a statement Thursday. "It needs to do what federal law requires -- tell the American people what it wants to accomplish, ask them for their feedback, and only then make a decision."
The Foundation for Individual Rights in Education, the civil liberties group that orchestrated the lawsuit, has long objected to the Education Department letter. It's the third lawsuit to challenge the 2011 guidance.
The two other suits were filed by a Colorado State University-Pueblo student who was suspended for an assault allegation, and by a Georgia lawmaker who doesn't have any personal experience with university misconduct cases and who legal experts doubt has standing to sue.
Few details are available about the UVA plaintiff's misconduct case. He was charged with sexual misconduct in May 2015, but had to wait until January 2016 for a hearing, the suit said. He was found responsible of sexual misconduct for not obtaining "effective consent" during an alcohol-induced encounter with a former girlfriend, and was banned from UVA and ordered to undergo counseling as a result, according to the lawsuit. The plaintiff then passed the bar exam in Virginia and received his law degree in March.
A retired judge who handled the former UVA student's case said the preponderance standard was the “first and foremost” factor in deciding his guilt.
The plaintiff fears additional sanctions since UVA, his lawsuit notes, because the school was ordered to review all its sexual assault cases from the 2014-15 academic year after the Education Department found that the university had violated Title IX.
UVA declined to comment, citing privacy laws.
Education Department officials have said preponderance is the best standard for determining guilt in campus sexual misconduct cases because it's also used in civil lawsuits and gives both the accused and accuser a relatively equal chance of prevailing. Catherine Lhamon, assistant secretary for civil rights at the department, has spoken to lawmakers multiple times in recent years about the basis of its Title IX guidance.
FIRE maintains, however, that civil lawsuits offer plaintiffs more due process protections.
But federal officials have also noted that FIRE's own survey of 168 universities showed that 80 percent were using the preponderance standard prior to the Education Department's 2011 letter. The department modeled its mandate for schools on existing employment civil rights caselaw, officials said.
Dozens of male students accused of sexual assault have sued their colleges and universities for rights violations. Those who have claimed to be victims of gender discrimination in violation of Title IX have frequently lost. However, those who've said their constitutional or contractual rights were violated -- including some of Dillon's clients -- have had more success.