Sen. James Lankford, R-Okla., has been trying for months to get the Education Department’s Office for Civil Rights to justify it’s expansion of Title IX. When OCR finally responded (late), its justification was, let’s just say, lacking.
Now Lankford has written back, rejecting OCR’s justification and saying he was “unpersuaded” by its response letter.
“In my letter, I asked you to provide me with the statutory or regulatory language that the 2010 Dear Colleague letter on sexual harassment and bullying purports to interpret in cataloguing potentially prohibited conduct,” Lankford wrote. “Far from providing clarity, the 2010 letter obfuscates conduct constituting actionable sexual harassment under Title IX by including examples that ‘can’ violate Title IX.”
The “Dear Colleague” letters are allegedly “guidance” documents issued by OCR that don’t carry the force of law. The letters, however, threaten schools with a loss of federal funding and an investigation if they don’t comply.
OCR claimed it could expand what is covered under Title IX – a federal anti-gender discrimination statute – because the language was similar to that in past Dear Colleague letters. Lankford disagrees, writing that the language has been changed.
“Most significantly, you point to 2006’s Sexual Harassment: It’s Not Academic guidance pamphlet as developing the ‘same examples’ as the 2010 Dear Colleague letter,” Lankford wrote. “This is misleading, since the 2006 pamphlet made clear that such examples could not rise to an actionable Title IX violation without the presence of additional elements.”
Lankford also notes that none of the previous Dear Colleagues are supposed to carry the force and effect of law, so they cannot therefore “provide sufficient support to answer the question I posed in my January 7 letter: What statutory or regulatory authority do you construe to arrive at the conclusion that Title IX requires that this proscribed conduct ‘can’ be prohibited?”
Beyond sexual harassment and bullying, Lankford had requested justification for OCR’s sudden requirement that all schools use the low “preponderance of evidence” standard for deciding whether a student has committed sexual assault (a felony that leaves a lasting impact on a student who has been accused). The preponderance standard means an administrator has to be just 50.01 percent sure a student sexually assaulted his or her accuser, meaning that same administrator can be 49.99 percent sure the assault didn’t occur, and still brand someone a rapist.
Lankford is also unpersuaded by OCR’s justification that regulatory language calling for the “equitable resolution” of such complaints translates into the preponderance standard. The Oklahoma senator also discounts the mere use of precedent at some schools as a legal justification for requiring all schools to adhere to the standard.
“This support is unpersuasive, as letters of findings carry no precedential value themselves and are a poor vehicle to alert regulated entities of new requirements, if that was the intent of the Department,” Lankford wrote. “Further, the letters of findings to which you cite demonstrate that you have penalized those you regulate by enforcing standards never articulated by the Department and for which I question your authority.”
Finally, Lankford doesn’t accept OCR’s claim that the preponderance is acceptable in civil court and should therefore be used in campus disciplinary hearings.
“But school disciplinary proceedings, no matter how well-intentioned, are not courts of law and are therefore not as well equipped to ensure the fundamental due process protections that produce the ‘equitable resolution’ of civil disputes,” Lankford wrote. “Indeed, on its own terms, the Dear Colleague letter does not provide for many essential protections defendants in a court of law enjoy.”
Lankford is referring to every other tool defendants in civil court receive. OCR took the low standard of evidence, but included – and even strongly discouraged – providing accused students any opportunity to defend themselves. They do not have the power of discovery, or the ability to be represented by an attorney at most schools. They do not have subpoena power, and witness testimony is not given under oath. Even worse, OCR “strongly discouraged” schools from allowing accused students to cross-examine their accusers because it might “re-traumatize” the accuser – a clear indication that OCR believes every accusation is truthful.
“OCR’s silence on important due process considerations, coupled with the requirement of a lower standard of proof, indisputably tips the playing field against the accused, making the disciplinary process anything but ‘equitable,” Lankford wrote.
Lankford admonishes OCR for attempting to justify its “guidance” documents without citing governing statutory or regulatory authority, and says that prior guidance documents and letters of finding are not adequate.
“I will continue to push back against agencies’ improper use of guidance documents that, while purporting to merely interpret existing law, fundamentally alters the regulatory landscape,” Lankford said.
“I further ask that you immediately rein in the regulatory abuses within the Department of Education and take measures to ensure that all existing and future guidance documents issued by your agency are clearly and firmly rooted in statutory authority.”
