Did the Education Department overstep its authority when it threatened to withhold funding from schools by changing the law regarding campus sexual assault?
This was the question Sen. Lamar Alexander, R-Tenn., attempted to get to the bottom of during an Appropriations Subcommittee hearing. During the hearing, Alexander grilled the department’s acting secretary, Dr. John B. King, about a non-legally binding document issued by the department that has actually carried the force of law.
Alexander kept asking King if the department’s “Dear Colleague” letters carried the force of law, to which King kept replying that they did not, and that the documents were merely his department’s “interpretation of the law and regulations, which are binding.”
Except, as Alexander went on to point out, colleges and universities are treating the “Dear Colleague” letters as the law for fear of what the department would do if they did not comply. Currently, schools face federal investigations and a loss of federal funding if they do not comply with the alleged “guidance” documents.
“In 2011, the Department put out a guidance and basically said ‘equitable resolution cannot mean either clear and convincing evidence or preponderance of the evidence, it’s got to mean preponderance of the evidence,'” Alexander said. “So that would mean to me that the U.S. Department of Education could today initiate an action and say to a school: ‘You’re violating Title IX if you use the standard of clear and convincing evidence.’ Is that correct?”
King reiterated that his department made clear that the guidance does not have the force of law.
“We do believe that equitable resolution means preponderance of the evidence—” King began to say before Alexander interrupted.
“Well who gave you the right to believe that?” Alexander said.
“And that’s an enormously important decision to make in the lives of students and universities, so Congress specifically said ‘equitable resolution’ and left that to university administrators and boards and others to resolve,” He added. “And you’ve come along and — not in a regulation, but just in a guidance, which isn’t binding — you’ve changed the law for 6,000 colleges and universities.”
Alexander also said the preponderance standard “introduced a whole series of concerns about due process,” which haven’t been addressed by the department, and that even if those concerns are addressed, Congress should be the ones to do so.
King again stated that it was the department’s “interpretation” that “equitable resolution” meant the preponderance standard, to which Alexander asked: “Where in the world, where is that written?”
King claimed that it was the long-standing policy at the department, but Alexander interjected that it was not.
“No it has not. In 2011, a university could use either clear and convincing or preponderance of the evidence,” Alexander said. “In 2011, you changed that by guidance, and now you are in effect making every university do that because they might fear an action from your Department based on that legislating by the Department.”
King again fell back to the defense that it was long-standing policy. Alexander was not able to ask the acting secretary about the numerous due process concerns on college campuses.
While the department claimed the preponderance standard is allowable because it is used in civil court, the department has denied accused students other due process rights afforded to defendants in civil litigation, such as the representation of an attorney, discovery rights, subpoena power, etc. At schools across the country, biased investigators — pressured by the department to find accused students responsible — are able to ignore exculpatory evidence if they claim it isn’t relevant.
Until more senators like Alexander push back against the evisceration of due process rights on college campuses, innocent students will continue to be expelled.
Ashe Schow is a commentary writer for the Washington Examiner.
