It's college sexual-assault cases vs. Constitution

University of Chicago

A member of Congress has confronted the Obama Department of Education for making new rules about handling sexual assault cases and imposing them, under threat, on colleges and universities across the nation without authority or legal basis.

At issue are the "Dear Colleague" letters issued several years ago by the agency's Office for Civil Rights that mandate a long list of requirements for colleges handling sexual assault cases or allegations.

Among the demands is that someone can be convicted of sexual assault in a setting in which the defendant has no right to defense counsel. An individual could be convicted based simply on the fact that the assault likely occurred.

The letters created consternation across the education community for their demands, including that schools use the lowest standard of evidence, a preponderance of evidence, in such cases that could affect defendants' lives and careers.

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The letter to John King Jr., the acting secretary of the Department of Education, is from Sen. James Lankford, chairman of the Subcommittee on Regulatory Affairs and Federal Management.

His letter, dated Thursday, instructs the federal bureaucracy to explain exactly what federal law the advisory letters were based on or to make absolutely clear, "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."

The senator points out that the letters cite Title IX at-large as authority.

"Yet, OCR fails to cite to specific statutory or regulatory authority that the letters purport to 'interpret.' For example, the 2010 Dear Colleague letter declares that Title IX 'prohibit[s]' 'conduct such as touching of a sexual nature; making sexual comments, jokes, or gestures; writing graffiti or displaying or distributing sexually explicit drawings, pictures, or written materials; calling students sexually charged names; spreading sexual rumors; rating students on sexual activity or performance; or circulating, showing, or creating emails or Web sites of a sexual nature.'"

See what American education has become, in “Crimes of the Educators: How Utopians Are Using Government Schools to Destroy America’s Children.”

"But the letter provides no citation to any underlying statutory or regulatory language used to arrive at the conclusion that Title IX, on its own terms, prohibits such conduct," the senator wrote.

He said the content of the letters make changes that "more closely resemble the quintessential substantive rule," which should have been subject to the APA's "notice-and-comment procedures."

"I am perplexed as to why OCR would prefer to issue guidance citing exceedingly broad and attenuated Title IX authority instead of engaging in APA-required rulemaking procedures. Perhaps OCR sought to avoid notice-and-comment procedures, fearing that education officials and other interested groups would have voiced substantive objections to the letters' policies if given an opportunity."

He said such fears would have been well-placed, since "legal scholars and academics across the political spectrum have decried the Dear Colleague letters as offensive to First and Fourth Amendment protections – protections that Title IX and its implementing regulations alone have never been said to imperil."

The senator said it appears that OCR's letters "are not merely interpretive, but alter the regulatory and legal landscape in fundamental ways."

Harvard, confronted by the new demands, created an Office for Sexual and Gender-Based Dispute Resolution, but 28 law school faculty members immediately wrote an op-ed complaining the policy was "inconsistent with many of the most basic principles we teach."

They cited eight due process concerns, and concluded the agency imposed policy "departs dramatically from legal principles [developed by the Supreme Court and lower federal courts], jettisoning balance and fairness in the rush to appease certain federal administrative officials."

The reaction from the University of Pennsylvania law school was similar. And concerns were raised by several members of the U.S. Commission on Civil Rights, who wrote to Congress to point out that the agency's broad concept of "sexual harassment" actually included speech protected by the First Amendment.

Former American Civil Liberties Union President Nadine Strossen just a few weeks ago complained the "OCR's distorted concept of sexual harassment actually does more harm than good to gender justice, not to mention free speech."

Lankford's letter noted not only the infringements on the Constitution, but the Obama administration's "coercive" practices, referencing a description from a member of the American Council on Education of the OCR as "little more than a bully with enforcement powers."

The senator's letter insists on the "specific statutory and/or regulatory language to support each of the 'Dear Colleague' letter policies." Or else make it clear that those are not grounds for action.

According to officials with the Foundation for Individual Rights in Education, the administration's practices "strip students of rights without congressional approval or even a chance for public notice and comment."

The 2010 and 2011 letters mandate "how colleges and universities that accept federal funding – virtually every institution in the country – must respond to bullying and sexual misconduct in order to comply with federal anti-discrimination statutes."

"The Foundation for Individual Rights in Education (FIRE) and other civil liberties organizations have repeatedly criticized the letters for threatening freedom of expression and due process on campus by defining First Amendment-protected expression as 'harassment' and mandating the use of the lowest standard of proof in sexual misconduct cases, among other requirements."

"OCR has consistently avoided giving real answers to questions about its power to issue regulations outside the bounds of the law," said Robert Shibley, FIRE's executive director. "It cannot avoid accountability forever."

"Just last month, a public university administrator in Michigan claimed that Title IX and government regulations supersede the Constitution," said Shibley. "OCR has been acting as though he were right. It's time for that to stop."

See what American education has become, in “Crimes of the Educators: How Utopians Are Using Government Schools to Destroy America’s Children.”