WASHINGTON, January 7, 2016—In a letter sent today expressing “continued alarm” about the Department of Education’s Office for Civil Rights (OCR), United States Senator James Lankford demands answers from Acting Secretary of Education John B. King about the agency’s authority to impose controversial new mandates on colleges and universities that strip students of rights without congressional approval or even a chance for public notice and comment.
Issued in 2010 and 2011 under the guise of “Dear Colleague” letters, OCR’s mandates dictate how colleges and universities that accept federal funding—virtually every institution in the country—must respond to bullying and sexual misconduct in order to comply with federal anti-discrimination statutes like Title IX. The Foundation for Individual Rights in Education (FIRE) and other civil liberties organizations have repeatedly criticized the letters for threatening freedom of expression and due process on campus by defining First Amendment-protected expression as “harassment” and mandating the use of the lowest standard of proof in sexual misconduct cases, among other requirements.
Senator Lankford notes that OCR’s letters “fail to point to precise governing statutory or regulatory language that support their sweeping policy change.”
“OCR has consistently avoided giving real answers to questions about its power to issue regulations outside the bounds of the law,” said Robert Shibley, FIRE’s executive director. “It cannot avoid accountability forever.”
Given the substantive mandates announced in OCR’s letters, Senator Lankford asks Acting Secretary King why the agency declined to submit them for public notice and comment, as required by the federal Administrative Procedure Act (APA).
“Perhaps OCR sought to avoid notice-and-comment procedures, fearing that education officials and other interested groups would have voiced substantive objections to the letters’ policies if given an opportunity,” Lankford writes. “If so, this fear would have been well-placed: legal scholars and academics across the political spectrum have decried the Dear Colleague letters as offensive to First and Fourth Amendment protections—protections that Title IX and its implementing regulations alone have never been said to imperil.”
FIRE has long voiced serious concerns about OCR’s avoidance of the APA. In 2013, FIRE filed a “friend-of-the-court” brief in federal district court arguing that OCR’s 2011 “Dear Colleague” letter regarding campus sexual misconduct was invalid for its failure to adhere to the APA’s notice-and-comment requirements.
Senator Lankford is the latest senator to question OCR’s overreach. In 2014, Senator Lamar Alexander, Chairman of the Senate Committee on Health, Education, Labor & Pensions (HELP Committee), criticized OCR’s characterization of the 2011 “Dear Colleague” letter as “guidance” when questioning Assistant Secretary for Civil Rights Catherine Lhamon, OCR’s chief, in a hearing. Senator Alexander levied similar criticisms in an exchange with Deputy Assistant Secretary Amy McIntosh in hearings held by the Senate Homeland Security and Governmental Affairs Committee’s Subcommittee on Regulatory Affairs and Federal Management last September. Lankford is the subcommittee’s chairman.
“Just last month, a public university administrator in Michigan claimed that Title IX and government regulations supersede the Constitution,” said Shibley. “OCR has been acting as though he were right. It’s time for that to stop.”
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.
Katie Barrows, Communications Coordinator, FIRE: 215-717-3473; firstname.lastname@example.org