Senator [crscore]James Lankford[/crscore] is challenging the Department of Education over its handling of sexual assault on campus, arguing the department has grossly overstepped its authority to pursue a political objective.
In a letter sent to acting Secretary of Education John King Thursday, Lankford, who chairs the Senate’s regulatory affairs subcommittee, challenged the department to provide legal justification for a bevy of mandates and requirements it has placed on schools in the past few years. The rules in question mostly relate to the topics of sexual assault, harassment, and bullying.
It’s an unusual fight to pick. Several Republicans, including [crscore]Marco Rubio[/crscore], have collaborated with Democrats in trying to create legislation to increase the federal government’s ability to fight campus sexual assault. Lankford’s fight is also surprising because his target isn’t a new policy, but one that has been in place for years.
Back in 2010 and 2011, the Department of Education sent a series of “Dear Colleague” letters to colleges and K-12 schools, outlining how it expected them to address issues of bullying, sexual harassment, and sexual assault. Many of its demands were quite specific and controversial. For instance, colleges were ordered to adjudicate all accusations of sexual assault using the “preponderance of the evidence standard,” a lower burden of proof than many were using before. This lower standard, critics say, is leading to innocent students being railroaded off-campus with very little due process. (RELATED: Lawsuit: Student Bragged About Sleeping With Athletes, Then Got Them Expelled For Rape)
The letters also provided a very broad definition of harassment, which some argue infringes on the free speech rights of students.
“Dear Colleague” letters are only supposed to offer guidance regarding already-existing regulations, but Lankford argues they go so far they amount to new regulations, which means the Department of Education implemented them illegally without following the required process for making them. Ordinarily, planned regulations must be announced in advance and the agency must invite outside comment.
“We can’t just say this is hard, so I’m going to skip it,” Lankford’s letter says.
Lankford also accuses the Department of Education of using what is officially just a suggestion to strong-arm schools, who are so dependent on federal financial aid that they dare not draw the government’s ire. Schools found responsible for violating Title IX and other federal laws can have become ineligible for federal student loans, a blow that could be lethal to many schools.
“Colleges and universities across the nation, in addition to prestigious legal scholars, government officials, and members of the U.S. Congress view the Dear Colleague letters as improperly issued guidance that require constitutionally questionable and ill-conceived policies,” Lankford’s letter says. “Here, I present to you an opportunity to correct the muddled record.”
The Foundation for Individual Rights in Education (FIRE), a group promoting civil liberties in schools, praised Lankford’s letter.
“OCR has consistently avoided giving real answers to questions about its power to issue regulations outside the bounds of the law,” FIRE executive director Robert Shibley said. “It cannot avoid accountability forever.”
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