It’s a variation of “The Emperor’s New Clothes.” The Department of Education is defending a series of regulations it has imposed on American colleges and universities by claiming, in the face of substantial evidence to the contrary, that they really aren’t regulations at all. Now, its defiance is setting up a potential clash with Congress.
Under the Obama administration, the Department of Education’s Office of Civil Rights (OCR) has used an 11-page “Dear Colleague” letter from 2011 to aggressively dictate how colleges handle sexual assault and sexual harassment on campus. The “Dear Colleague” letter draws authority from the federal Title IX law prohibiting sex discrimination in education, and lays down very specific requirements. For example, colleges are now required to adjudicate sexual assault allegations using a low “preponderance of the evidence” burden of proof and required to use a very broad definition of harassment.
OCR has backed up its letters with tough action. Currently, over 100 schools are being investigated for potential violations of Title IX due to their handling of sexual assault and other issues. The stakes are high; a school found in violation of Title IX can lose all of its federal funding — an effective death sentence for many institutions. The severe penalties mean schools have largely been unwilling to defy OCR’s mandates. At Harvard, for instance, officials adopted a new, heavily-criticized sexual assault policy in response to an OCR investigation.
Now, over four years after the “Dear Colleague” letter went out, OCR’s aggressive enforcement is starting to see signs of pushback in Congress. In early January, Republican Sen. James Lankford of Oklahoma, who chairs the Senate’s Regulatory Affairs Subcommittee, sent a letter to acting Secretary of Education John King asking how OCR legally justified the sweeping demands it was making. “Dear Colleague” letters, he pointed out, are only supposed to clarify existing rules, not create new ones, and so the regulatory shifts created by the letters appeared to be “constitutionally questionable and ill-conceived.”
Lankford requested a response by Feb. 4, but OCR made him wait another two weeks before it finally delivered an answer in the form of a short letter from OCR head Catherine Lhamon.
The short response argues, in essence, that OCR hasn’t been creating new regulations but has simply been explaining its views on existing ones and far more aggressively enforcing them. For example, OCR’s new expectation that colleges use a low “preponderance of the evidence” burden of proof is justified by the fact that a 1975 regulation requires schools have “equitable” procedures for resolving cases of sex discrimination. OCR has unilaterally declared, without outside input, that only a low burden of proof satisfies the requirement that procedures be “equitable,” even though such an expectation clashes heavily with the tough burden of proof applied for actual criminal cases.
Lhamon’s claim that OCR hasn’t created entirely new regulations runs up against the fact that OCR’s actions since 2011 have heavily transformed the regulatory landscape for American colleges, with colleges drastically overhauling their sexual assault procedures to prevent an investigation or appease OCR regulators (for instance, about one in five colleges were required to change their burden of proof in sexual assault hearings). It also clashes with the response OCR’s efforts aroused from professional academics, who clearly regarded the “Dear Colleague” letters as effectively new regulations, rather than a restatement over old expectations.
A source close to Lankford’s office indicated to The Daily Caller News Foundation that Lhamon’s answer was far from satisfactory and said a congressional hearing about OCR’s alleged overreach could be in the near future. If that happens, there could be a long-delayed clash between congressional Republicans and the Obama administration on the topic of campus sexual assault and possible overreach by the administration’s regulators.
This report, by Blake Neff, was cross-posted by arrangement with the Daily Caller News Foundation.