U.S. Senator’s letter to ED questions its legal basis for the department’s guidance on bullying and harassment
Sen. James Lankford (R-Okla.) has sent a letter to the U.S. Department of Education (ED) questioning whether ED has exceeded its legal authority in its efforts to push colleges to do more on sexual assault. ED is aggressively pushing colleges and universities to address campus sexual harassment and violence by promptly investigating complaints of misconduct and sanctioning anyone found to have done wrong.
Lankford, chairman of the Senate’s regulatory affairs subcommittee, argues that federal officials essentially violated the rules that outline how the government is supposed to make rules. “I don’t have a sense that the Department of Education is mean or evil,” Lankford said in an interview. “My issue is you have to follow the rules and do this the right way.”
ED laid out universities’ and school districts’ obligations to address harassment and sexual violence in two key “Dear Colleague” letters, one issued in 2010 and one in 2011. The letters helped to usher in sweeping changes on many campuses. But some of their provisions were controversial, including a list of acts that should constitute harassment, which was broad enough that some scholars said it would conflict with students’ First Amendment right to free speech.
The letters are considered administrative guidance, which agencies are supposed to use when they need to clarify regulations that already exist. But Lankford argued in his letter Thursday that the Education Department’s letters outlined such big and important changes that they amounted to new regulations. And there’s a whole process for writing new regulations. That process involves soliciting and responding to public input. It usually takes a long time. It is often a headache. Lankford accused the Education Department of misusing guidance letters to circumvent that headache.
His letter is not the first time that the department has faced questions about its use of Dear Colleague letters (DCL), and officials in the past have said that the letters are appropriate because they clarify existing regulations stemming from Title IX, the federal law that protects students from sex discrimination — and therefore assault and harassment — in federally funded education programs. “I do not make the law, but we explain it. It’s an explanation of what Title IX means,” Catherine E. Lhamon, assistant secretary for civil rights (OCR), told the Senate education committee in 2014. “This is not regulatory guidance.” “I greatly disagree with that,” Sen. Lamar Alexander (R-Tenn.) shot back in a lengthy exchange about the matter. “You’re just making an edict without any chance for public comment.”
Lankford’s letter asks the department to cite the existing regulations that justify every mandate in the 2010 and 2011 “Dear Colleague” letters. “Colleges and universities across the nation, in addition to prestigious legal scholars, government officials, and members of the U.S. Congress view the Dear Colleague letters as improperly issued guidance that require constitutionally questionable and ill-conceived policies — policies that fail to accomplish our common regulatory goals of school safety and gender equality in education as required by Title IX,” Lankford wrote. “Here, I present to you an opportunity to correct the muddled record.”
Source: The Washington Post, 1/7/16, By Emma Brown
[Editor’s Note: Sen. Lankford’s letter, just as NSBA’s March 2015 letter in response to OCR’s November 2014 DCL on Title II “effective communication” regulation guidance, challenges ED to provide a specific statutory and/or regulatory basis for the department’s policy changes, as NSBA’s March 2015 letter aptly pointed out: “Imposing an administrative enforcement standard at odds with existing court rulings will cause needless confusion and disputes as to school district responsibilities for serving students with communication disabilities. It will also encourage litigation, which will further deprive school districts of resources needed to educate students.”]