Georgia state Rep. Earl Ehrhart (R-Powder Springs) has filed a lawsuit against the U.S. Department of Education for forcing universities to judge sexual assault and related claims on a "preponderance of evidence" instead of "clear and convincing" evidence.
The Georgia lawmaker says he has met with 15 university students who faced punitive actions from colleges after they were falsely accused of sexual harassment or assault. He said his most recent contact was with an accused student who attempted suicide.
Ehrhart, a member of his state’s Higher Education Committee, argues in his lawsuit that the department’s Office of Civil Rights has overstepped its rule-making authority under the Administration Procedure Act.
The controversy over universities presiding over the guilt or innocence of a student accused of committing an offense of a sexual nature stems from a ‘Dear Colleague’ letter issued in 2011. That letter told higher education institutions that they should take action against an accused person if there is a “preponderance of evidence” rather than “clear and convincing” evidence, the standard most colleges used and that some still do.
Crucially, if a university does not act in accordance with the letter, further directives and enforcement actions, it faces financial penalties tied to federal funding. Close to 200 universities named on a publicly released list are being investigated for failing to comply entirely with directives. The aim of the letter and directives is to force colleges to more aggressively tackle on-campus sexual violence and misconduct.
But the actions by the department, Ehrhart told the Higher Education Tribune, are quite simply against the law, introduced without consultation, comment period or other measures that must be carried out under the Administration Procedure Act.
“This cannot be done at the whim of some scrappy bureaucrat, whose musings are not important,” Ehrhart said. “You cannot just create by fiat; this is nothing beyond the fevered dreams of someone in executive branch agencies.”
More than 100 lawsuits have been filed by accused students who feel they have been put through kangaroo court, Will Creeley, of Foundation for Individual Rights in Education (FIRE), told the Washington Post. Ehrhart believes the figure is closer to 300.
FIRE is sponsoring one of the most recent lawsuits, filed by a University of Virginia student found to be responsible for sexual misconduct. The former judge handling the case found that on the “preponderance of evidence” the student was responsible, but would not have been under the “clear and convincing” standard.
Ehrhart believes universities are not capable of handling what are essentially criminal complaints, and that the “real bad guys” may escape justice because of the danger that evidence could be tampered with, or destroyed, leaving prosecutions impossible.
“These kind of cases have to be taken care of by professionals, law enforcement, those who understand and know how to get the bad guys,” Ehrhart said.
He has been contacted by 15 individuals and their families, most from Georgia, who believe due process has been denied.
In the latest case, Ehrhart met with the student and his mother. He is convinced the young man is innocent of any wrongdoing.
“He is absolutely destroyed. He has been falsely accused, and I saw pain and agony on those people’s faces,” said Ehrhart. ““I never felt as strongly about an issue, the injustice. This man almost lost his life because his parents did not hear about the accusation. He tried to commit suicide. He is unbelievably innocent.”
Ehrhart’s lawsuit against the department, and the Office of Civil Rights, is in the early stages of discovery, but the representative believes he will ultimately be successful.