A Georgia state legislator filed a daring new lawsuit Thursday against the Obama administration, arguing that five years of regulatory pressure it has placed on colleges regarding sexual assault has been an illegal abuse of its authority.
The Department of Education’s Office of Civil Rights (OCR) “exceeded [its] authority” in 2011 when it issued its “Dear Colleague” letter instructing college administrators on how they had to address sexual assault, according to Rep. Earl Ehrhart. Officially, the letter just clarified existing regulations under Title IX, a long-standing federal law barring sex discrimination in all schools receiving federal money.
But in practice, the letter made schools substantially overhaul their approach to sexual assault on campus. Schools were ordered to adopt a “preponderance of the evidence” standard for judging sexual assault cases, a lower standard than many schools were using at the time. After the letter, OCR also became far more aggressive in investigating schools it believes may be insufficiently zealous in policing against assault. Currently over 170 schools are under investigation, and the stakes are high: Schools found responsible for creating a “hostile environment” can, in theory, lose all federal funding.
Critics like Ehrhart argue that this federal pressure encourages schools to railroad students accused of sexual assault in an an effort to prove that they are being tough on the issue. Many suspended and expelled students across the country have sued their schools, claiming that campus tribunals failed to give them adequate due process.
Ehrhart also argues that OCR illegally imposed new rules on schools, since it used a “Dear Colleague” letter to articulate them rather than going through the ordinary (and more cumbersome) regulation-making process. That, in his words, makes them “unconstitutional, arbitrary, and void.”
Ehrhart’s lawsuit is the second in the past week to target OCR over its policies. Recently, Colorado State University student Grant Neal filed a lawsuit of his own, claiming that federal policies had created an anti-male environment that resulted in his unjustified suspension for sexual assault.
There could be at least one more lawsuit on the way, as well. In early April, the Foundation for Individual Rights in Education (FIRE), a campus civil liberties group, put out a call for potential plaintiffs to assist with a lawsuit against OCR.
The lawsuits mirror a similar surge in skepticism in the U.S. Congress. Recently, Oklahoma Sen. [crscore]James Lankford[/crscore] has been in a war of words with OCR, sending a series of letters accusing it of circumventing the regulatory process to impose new rules on schools without accepting input from the public. (RELATED: Senator Defies Obama Admin On Sexual Assault)
Ehrhart’s lawsuit could have a tougher time gaining traction than other cases, though. Ehrhart is suing in his capacity as a taxpayer and because he has a son attending Georgia Tech; neither he nor his son have been affected by a sexual assault allegation. That makes his alleged harm more speculative, and therefore more vulnerable to a motion to dismiss on the part of OCR.
Ehrhart has made sexual assault policy a major issue in his career as a state lawmaker. In March, he demanded Georgia Tech president Bud Peterson resign over the school’s sexual assault policies, which he said didn’t do enough to protect due process.
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