In a February 17, 2016 letter the Department of Education’s Office for Civil Rights responded to Senator James Lankford’s request that DOE-OCR substantiate the legal basis for the sexual assault compliance requirements articulated in OCR’s guidance letters. I addressed Senator Lankford’s request in a prior article which you can read here.
Catherine Lhamon, Assistant Secretary for Civil Rights, responded on behalf of DOE-OCR. Although Senator Lankford requested a justification for all of the articulated compliance standards contained in the guidance letters, DOE-OCR in essence limited its response to two aspects of the letters that they issued.
First, DOE-OCR offered a credible justification for its statements of examples of conduct that can constitute sexual harassment. In a paragraph found on pages 2-3 of DOE-OCR’s response, Ms. Lehman traced the examples back to a 1997 guidance document issued by OCR that articulated the legal standards for identifying conduct that could constitute sexual harassment that went through the APA’s notice and comment period and which was acknowledged by the Supreme Court. She further went on the note that the 1997 guidance was subsequently modified in 2001 via a notice and comment process, and that these standards were relied upon and contained in documents issued by the Bush administration.
The second issue addressed in Ms. Lehman’s response was DOE-OCR’s requirement in the 2011 DCL that the “preponderance of the evidence” standard be used by educational institutions to resolve sexual harassment/violence complaints. The justifications offered for imposing this compliance requirement can best be described as weak. The first justification by DOE-OCR was that in a couple of letters of findings issued under prior administrations OCR indicated that the preponderance of the evidence standard should be used in campus complaint proceedings. The second primary justification was that before the 2011 DCL was issued most colleges were the preponderance of the evidence standard in sexual harassment/violence grievance procedures. These explanations offered by DOE-OCR do not appear to offer a clearly persuasive argument that requiring institutions of higher education to use the preponderance of the evidence standard is grounded in either Title IX law or the Title IX regulations.
DOE-OCR’s response did not satisfy Senator Lankford and resulted in him sending a rejoinder to the Acting Secretary of the Department of Eduction in which Senator Lankford expressed his displeasure. Rather than summarize the letter I am providing you with the link here so you can read it for yourself. I will simply note that it remains to be seen whether the Acting Secretary responds to Senator Lankford’s request for a personal response.