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Abstract: 

This article discusses a letter from Office for Civil Rights (OCR) and the response to it from the Foundation for Individual Rights in Education (FIRE). In an attempt to help institutions of higher education better assess and respond to allegations of sexual violence on their campuses, the Department of Education distributed this letter to clarify the role of faculty and administrators in maintaining an environment free from harassment and ensuring that “all students feel safe in their school, so that they have the opportunity to benefit fully from the school’s programs and services.” Responding to the OCR letter, FIRE expressed “deep concerns” over the “deleterious impact” OCR’s guidance will have on students’ due process rights. In particular, FIRE reserves its wrath for one sentence in the OCR letter: “Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.” Here, Daniel Kast discusses why “preponderance of the evidence” is an acceptable standard.

Keywords: Office for Civil Rights (OCR); Foundation for Individual Rights in Education (FIRE); Title IX

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