Education Department Officials’ Candid Acknowledgement

October 7, 2015

By Ashe Schow at Washington Examiner 

For years, those opposed to campus adjudication of sexual assault have argued that the document declaring that schools must create court systems was not legally binding. It turns out Education Department officials agree.

The document, known as the “Dear Colleague” letter, was issued in 2011 and directed schools to create courts with severely limited to no due process protections for accused students. This was done supposedly in an effort to combat an “epidemic” of campus sexual assault. Schools that didn’t punish accused students — even if the evidence didn’t support the accusation — were at risk of losing government funding and threatened with federal investigations.

Those investigations almost always (except for once, to my knowledge) result in a finding that the school violated the anti-discrimination law known as Title IX, which is the basis for the Dear Colleague letter. Should a school find an accused student not responsible, the accuser would file a claim with the Education Department’s Office for Civil Rights and the school would be investigated.

Organizations like the Foundation for Individual Rights in Education have pushed back against the Dear Colleague letter, arguing that because the document didn’t go through the proper regulatory channels, it was not legally binding.

“If a proposed agency rule would impose new obligations on the public, the [Administrative Procedure Act] requires the agency to subject those proposed rules to notice and comment before they may be adopted,” wrote FIRE’s legislative and policy director Joseph Cohn. “OCR skipped this process altogether when it issued the DCL, despite several new substantive requirements in the document, like the requirement that institutions use the preponderance of the evidence standard when adjudicating claims of sexual misconduct.”

Cohn added: “When an agency imposes new obligations upon the public without subjecting it to public notice and comment, the new rules aren’t legally binding or lawfully enforceable.”

Cohn has now documented two Education Department officials who have acknowledged that the Dear Colleague letter is not legally binding. Both acknowledgements have occurred in the past few weeks.

In late November, Education Department Deputy Assistant Secretary Amy McIntosh told a senate hearing that “guidance that the department issues does not have the force of law.” This was in response to a question from Sen. Lamar Alexander, R-Tenn., who attended the hearing in order to ask about the department’s overreach.

One week later, Under Secretary Ted Mitchell said in his sworn testimony before another Senate committee that the guidance was not binding.

“Our guidance does not hold the force of law and our recommendations and illustrations of the ways in which we are interpreting the statute and the regulations,” Mitchell said. This was in response to a question from Sen. James Lankford, R-Okla., who had asked about universities’ ability to contest guidance that appears to be a regulation, when their federal funding is at stake.

Undoing the damage done to students — both accused students who have been wrongly expelled and otherwise treated as guilty, and accusers who have not had proper authorities look into their claims — will be a monumental task. But it is worth it to begin taking campus sexual assault seriously. Pseudo-courts adjudicated by improperly trained college administrators should not be handling felonies — that is the job of the police and our state and federal court systems.