Sen. James Lankford, R-Okla., has written a letter to the secretary of the Education Department decrying the department's federal overreach when it comes to bullying, harassment and sexual violence.
Lankford, who chairs the Homeland Security Subcommittee on Regulatory Affairs, has taken specific issue with the Education Department's rules regarding how schools adjudicate these issues. The department has issued multiple "Dear Colleague" letters imposing new rules, and with that, costs, on schools across the country without congressional approval or even a comment period.
The letters are subject to the Administrative Procedure Act, Lankford explains, because they amount to "substantive and binding regulatory policies that are effectively regulations." Lankford asks for a "thorough justification of the letters by providing the precise statutory and/or regulatory authority under Title IX for each policy that the letters purport to interpret."
Previously, the Education Department's Office for Civil Rights has cited Title IX as justification for forcing schools to adjudicate felonies such as sexual assault. Yet that is a very stretched interpretation of Title IX, which bans discrimination on the basis of sex. OCR has determined on its own that sexual harassment and sexual assault (even between same-sex partners) is a form of discrimination and therefore is covered under Title IX.
Even with that interpretation, nothing suggests that schools must set up kangaroo court systems to adjudicate accusations — that was yet another "interpretation" from OCR.
Lankford singles out the insistence of OCR for schools to use a "preponderance of evidence" standard of proof when determining responsibility in accusations of sexual assault. This is a low standard that means administrators have to be just 50.01 percent sure an assault took place (meaning they can be 49.99 percent sure it didn't take place and still ruin someone's life) in order to find someone responsible, which could lead to an expulsion.
Lankford notes that OCR did not cite Title IX specifically in justifying this standard, but cited other Education Department grievance procedures that use it. From this, Lankford writes, it seems OCR did not include the provision based on any established law or statute, but was chosen because it "merely reflects a preferred OCR convention."
"Requiring an evidentiary standard justified only by prior agency practice cannot be said to be merely interpretive of existing legal authority," Lankford writes. "Instead, the policy more closely resembles the quintessential substantive rule, and accordingly, is precisely the type of policy that must be subjected to the APA's notice-and-comment procedures."
Lankford also accused OCR of wanting "to avoid notice-and-comment procedures" by issuing guidance in this way for fear that "education officials and other interested groups would have voiced substantive objections to the letters' policies if given an opportunity." He says such a fear would have been well placed, as groups — including law professors at Harvard Law and Penn State and the former president of the American Civil Liberties Union — have come forward to denounce OCR's constantly evolving rules.
In addition to the infringement on civil liberties, Lankford worries that OCR's rules "improperly bind regulated parties." Despite department officials claiming that the "Dear Colleague" letters aren't binding, the message to schools has been clear: Do what we say or face an investigation and potential loss of federal funding.
Lankford gives one example of the messy relationship between OCR and universities. Tufts University was investigated for violating Title IX in its handling of sexual assault complaints. Tufts agreed to sign a voluntary resolution and change how it handles complaints. After the resolution was signed, OCR said it would still find the school retroactively in violation of Title IX. Tufts revoked its signature. OCR threatened to pull the university's federal funding.
If OCR's rules were merely "guidance," then the threats would not have been made.
"Colleges and universities across the nation, in addition to prestigious legal scholars, government officials and members of the U.S. Congress view the 'Dear Colleague' letters as improperly issued guidance that require constitutionally questionable and ill-conceived policies — policies that fail to accomplish our common regulatory goals of school safety and gender equality in education as required by Title IX," Lankford wrote.
He requests specific citations from statutory and/or regulatory language to justify the letters. And for those policies that "cannot be reasonably construed from existing statutory or regulatory language," and are therefore required to go through the APA process, "please clarify, in no uncertain terms, that failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding or rescission of federal funding.
Lankford requests a response from the department by Feb. 4.
This is a welcome development, as OCR has used its authority to bully schools into spending funds on creating kangaroo court systems to appease federal activists. Schools are investigated and threatened with loss of funding if they fail to find in favor of accusers. And it's all based on department rules that weren't properly reviewed and accepted, but rather snuck in through the back door.
It's good to see a member of Congress stand up for civil liberties.