Senator James Lankford (R-Okla.) has written a letter to the U.S. Department of Education questioning the legal basis of the guidance letters that have been issued the past several years by the Department’s Office for Civil Rights regarding their interpretation of Title IX and campus sexual harassment/assault and bullying.
In his letter Senator Lankford challenges the lawfulness of the Office for Civil Rights “Dear Colleague” letters on harassment and bullying (issued October 23, 2010) and sexual violence (issued April 4, 2011). The basis of his challenge is that the letters do not merely set out interpretations of existing law, but rather set forth new regulatory policies that can only be adopted following a notice and comment procedure under the Administrative Practices Act (APA).
In his letter Senator Lankford cites numerous examples of OCR overreach established by the Dear Colleague letters that contravene the APA and Title IX legislation. Among the examples are the following:
- a listing of conduct that is prohibited without citing the underlying regulatory language that prohibits such conduct;
- the enunciation that grievance procedures must use a preponderance of the evidence standard;
- the alteration of the regulatory landscape under Title IX to such a drastic degree that faculty members from Harvard Law School and University of Pennsylvania Law School have expressed their concerns about violations of due process occurring because of these new interpretations/requirements; and
- that the legal and academic communities are being compelled to view the tenets of the Dear Colleague letters as legally binding under threat of enforcement actions by OCR (as reflected by the Voluntary Resolution Agreements that universities have entered into with OCR).
Senator Lankford closed his letter asking the Department to provide a response indicating: (1) for each policy mandated by the 2010 and 2011 DCL’s the specific statutory or regulatory Title IX language that the letters interpret; and (2) those policies contained in the DCL’S that can not be reasonably construed from existing Title IX laws and regulations [which can not be binding as they have not undergone the APA’s notice and comment procedures] with clear clarification that ” … failure to adhere to the policies will not be grounds for inquiry, investigation, adverse finding, or recession of federal funding.” To date, I am not aware of a response by the Department of Education (note that Senator Lankford asked for a response by February 4).
The central issue raised in this letter about the legally binding nature of these DCL’s (and this concern has been raised elsewhere, as noted in Senator Lankford’s letter) has percolated in the higher education community for some time. But for various reasons no institutions have sought to challenge OCR’s authority respecting the requirements contained in the DCL’s, as evidenced by the Voluntary Resolution Agreements that institutions have entered into in response to compliance complaints filed with OCR.
I will offer that there are most likely two primary reasons that institutions have not challenged the DCL’s as to whether they contain legally binding compliance requirements. First is the practical consideration of the time, expense, and threat of loss of federal funding for challenging OCR and the potential of a court finding of non-compliance. The second reason is reputational. Institutions of higher education do not want to be seen as being on the wrong side of the campus sexual assault issue and being opposed to taking actions called for by the federal government to prevent sexual assault. The fall-out from the negative publicity for a challenge to OCR’s positions would be difficult to withstand.
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