A recent University of Virginia law school graduate is suing the U.S. Department of Education, alleging that the department has illegally mandated that colleges abandon due process protections when adjudicating sexual assault cases. In particular, the lawsuit focuses on the department's directive that colleges use a low standard of proof called preponderance of evidence. The department's Office for Civil Rights instructed colleges to use this standard in a 2011 Dear Colleague letter.

Department officials maintain that the letter merely clarified existing regulations. Critics, however, say that the letters actually enacted sweeping regulatory changes without first going through the notice-and-comment procedures required by the Administrative Procedure Act.

The UVA lawsuit is sponsored by the Foundation for Individual Rights in Education. The former student was found responsible of sexual assault last year when the university used the preponderance of evidence standard to decide his case, in which he was accused of assaulting an intoxicated woman. He was able to graduate but must complete four months of counseling before he is allowed to work as an attorney, and he is banned from returning to campus. According to the lawsuit, the retired judge who decided the case noted that it was a "very close" and "very difficult" decision, and that her ruling was based on the OCR's requirement that she use "the weakest standard of proof." Until 2011, UVA used the higher standard known as "clear and convincing."

The former student's lawsuit joins two others recently filed against the department that also argue the department ignored APA requirements and sacrificed due process.

“Students have a right to pursue their education free from sexual harassment, or any type of harassment or discrimination,” Dorie Nolt, press secretary for the Department of Education, said in an email. “The Office for Civil Rights has worked tirelessly to defend that right, and our efforts have been validated repeatedly by the courts.”