The Education Department has failed to respond to a request from Sen. James Lankford, R-Okla., regarding the Department’s authority to regulate bullying, harassment and sexual violence.
In January, Lankford sent the Department a letter requesting it to name the specific law or regulation that gave it the authority to begin forcing schools to adjudicate such misconduct. Lankford gave the Department 28 days to respond, which would have been Thursday. Instead, the Department requested more time.
“Education officials failed to respond and requested an extension to Feb. 22. I reluctantly agreed to give them these 19 extra days,” Lankford said in a statement to the Washington Examiner. “I will be patient, but given what I have learned through my oversight to date, Congress and the American people deserve a thorough explanation of these far-reaching policies.”
At issue is the Department’s “Dear Colleague” letters that force schools to take on new obligations. The letters, which Lankford says amount to new regulations, did not follow the proper channels set up by the Administrative Procedure Act.
The APA requires new regulations to be subjected to, among other things, notice and comment procedures. Lankford in his letter accused the Department of avoiding APA procedures out of fear that “education officials and other interested groups would have voiced substantive objections to the letters’ policies if given an opportunity.”
Among the requirements that came from the Department’s “Dear Colleague” letters are those that force schools to adjudicate sexual assault, which is a felony, using untrained or poorly trained administrators and without providing accused students with meaningful due process.
Lankford cites one particular provision from the Department — the “preponderance of evidence” standard — that was pushed onto schools. The standard means administrators adjudicating sexual assault just have to be 50.01 percent certain the assault occurred, meaning they can be 49.99 percent certain it didn’t and still expel a student and brand him a rapist. Lankford found no established law or statute as authority for the adoption of this standard, just that it “merely reflects a preferred [Education Department’s Office for Civil Rights] convention.”
“Requiring an evidentiary standard justified only by prior agency practice cannot be said to be merely interpretive of existing legal authority,” Lankford wrote. “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.”
The Department also has a habit of threatening schools’ federal funding if they don’t comply with the Dear Colleague letters, even though the letters are supposed to be “guidance.”
“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.
We’ll see if the Department can come up with anything by Feb. 22.
Lankford’s attempts to determine the legitimacy of the Department’s overreach on Title IX is the biggest step any legislator has taken toward fixing the broken campus system, and he deserves a lot of credit for it. Currently, students accused of sexual assault or harassment or bullying have little to no way to defend themselves, and schools — under pressure from the federal government — are incentivized to find them responsible even without evidence.
Ashe Schow is a commentary writer for the Washington Examiner.
