As I wrote on The Torch last month, those concerned about the Department of Education’s Office for Civil Rights exceeding its authority in mandating specific responses to campus harassment and assault were probably not reassured by OCR head Catherine Lhamon’s response to a recent inquiry on the topic from Senator James Lankford of Oklahoma. Last week, Senator Lankford wrote back to Acting Secretary of Education John B. King, Jr., to say that he was “acutely dismayed” at Lhamon’s failure to adequately explain the statutory or regulatory source of the problematic mandates announced in OCR’s April 4, 2011 and October 26, 2010 “Dear Colleague” letters (DCLs).
In his letter, Lankford reiterated his concerns about these two “guidance” documents. The 2010 DCL lists kinds of expression that are usually constitutionally protected (such as sex-related jokes and sexually explicit materials) as conduct that might violate Title IX. However, the letter omits critical language from previous guidance clarifying that this expression constitutes punishable harassment only if it also “den[ies] or limit[s] a student’s ability to participate in or benefit from” his or her educational program.
With respect to the 2011 DCL, Lankford aptly pointed out that Lhamon’s proffered sources of OCR’s authority to mandate that colleges use the “preponderance of the evidence” standard in adjudications of sexual misconduct either “carry no precedential value” or do not, in fact, specify a standard of proof. He also pushed back against the idea that campus court proceedings should have the same standard of proof as civil rights cases in court, which provide a number of procedural protections for the respondent not typically available on campus.
There’s a good reason why Senator Lankford is not letting these issues go. “As Chairman of the Subcommittee on Regulatory Affairs and Federal Management,” Lankford wrote in his response, “I oversee agencies’ adherence to procedures governing the federal regulatory process to ensure that the public is heard and the process produces the best possible policy outcomes.” Provisions like the Administrative Procedure Act’s requirement that new agency rules be submitted for public notice and comment aren’t just red tape—they protect the whole country. Lankford elaborated in his conclusion:
Congressional oversight of agency action is a cornerstone to the checks and balances ensured by our Constitution. I will continue to push back against agencies’ improper use of guidance documents that, while purporting to merely interpret existing law, fundamentally alters the regulatory landscape. Congress enacted the Administrative Procedure Act to safeguard against precisely these threats of administrative fiat, and agencies that spurn such procedures do so contrary to congressional design and at the expense of the American people.
FIRE commends Senator Lankford for his continued advocacy for free speech and due process in the face of OCR’s stubborn refusal to recognize the law, and for his important reminder of why government agencies, too, must follow the rules.