Last summer, Senator Lamar Alexander (R-TN), the Chairman of the Senate Committee on Health, Education, Labor & Pensions (HELP Committee), questioned Catherine Lhamon, the Department of Education’s (ED’s) Assistant Secretary for the Office for Civil Rights (OCR), on the agency’s apparent overreach in how it is demanding compliance with its interpretation of Title IX. During that testimony, Lhamon testified that she expected institutions of higher education to fully comply with OCR’s guidance, despite arguing that the contents of the guidance were not regulatory.
Unsatisfied with the answers he received from Assistant Secretary Lhamon, last week, Senator Alexander joined a hearing of the Senate Homeland Security and Governmental Affairs Committee’s Subcommittee on Regulatory Affairs and Federal Management so that he could pose additional questions to ED’s deputy assistant secretary, Amy McIntosh.
During the exchange, first covered by The College Fix, Senator Alexander, himself the former Secretary of the Department of Education under President George H.W. Bush, recapped his prior exchange with Assistant Secretary Lhamon during the 2014 HELP hearing and then asked the following:
Senator Alexander: Now Ms. McIntosh, do you believe that we gave Ms. Lhamon the authority to make Title IX guidance binding on 6,000 higher education institutions?
Ms.McIntosh: Let me assure you, I tried to be very clear in my opening statement that guidance that the Department issues does not have the force of law.
Senator Alexander: But this is the assistant secretary of the department, with Title IX, which affects 6,000 institutions, 100,000 public schools. And she apparently hadn’t gotten the word. Who’s going to tell her?
Ms. McIntosh: So…
Senator Alexander: Are you?
Ms. McIntosh: As she knows and as I know, Title IX is the binding law that applies in the cases that you are describing…
Senator Alexander: So guidance under Title IX is not binding—is that correct?
Ms. McIntosh: Guidance under Title IX is not binding. Guidance helps the many people who are subject to Title IX understand what they need to do to comply with the law.
Senator Alexander: Right. But who is going to tell Ms. Lhamon this?
The video of the full exchange is worth the watch.
Senator Alexander is completely right that OCR has been exceeding its authority. For example, as FIRE and others have been saying for years, OCR did not have the authority to demand that institutions of higher education use the low “preponderance of the evidence” standard of proof when adjudicating campus sexual assault cases. OCR cannot cite any court cases requiring the preponderance of the evidence standard. Furthermore, because OCR skipped the notice-and-comment processes required under the federal Administrative Procedure Act, its guidance should not be taken as binding on institutions.
Despite McIntosh acknowledging under oath that guidance—like that found in OCR’s April 4, 2011 “Dear Colleague” letter—is not binding on colleges and universities, OCR continues to place institutions of higher education under investigation for potential violations of Title IX, and it continues to insist that institutions use the preponderance standard in recent settlement agreements. OCR should stop this practice immediately. While OCR can always recommend that institutions use the preponderance of the evidence standard, it should clearly inform institutions that they are free to select a higher, and more appropriate, standard of evidence.
It is good to see the Senate questioning OCR’s overreach, since OCR has shown no inclination to rein itself in.