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Education Dept. tries and fails to justify Title IX overreach

Earlier this year Sen. James Lankford, R-Okla., sent a letter to the Education Department's Office for Civil Rights demanding justification for the department's overreach on college campuses.

In the letter, Lankford notes that OCR "guidance" from 2011 — which prompted colleges and universities to begin forcefully pursuing accusations of sexual harassment and sexual assault — never went through a notice-and-comment period yet imposed harsh financial penalties on schools that did not comply. This guidance document has led to more than 100 expelled accused students suing their universities for discrimination and due process violations, and many, many more expelled students who cannot afford to sue.

OCR missed the initial deadline Lankford set for a response, and requested an extension. When OCR finally did come up with an explanation for how forcing schools to drop the presumption of innocence or face funding cuts was legal, it was unsurprisingly underwhelming.

Catherine Lhamon, OCR's assistant secretary for civil rights, spent several pages recounting earlier guidance documents that had gone through the notice-and-comment period as justification for the 2011 "Dear Colleague" letter. But the 2011 letter included noticeable changes that vastly expanded OCR's authority while sending a clear message to schools that if they don't begin holding accused students accountable (which has come to mean, in practical terms, suspend or expel anyone accused) they will lose federal funding. These changes did not go through the notice-and-comment period.

As Lankford pointed out in his initial letter, it seemed like OCR deliberately tried to avoid the notice-and-comment period in the 2011 Dear Colleague letter because it was afraid "education officials and other interested groups would have voiced substantive objections to the letters' policies if given an opportunity."

The avoidance question still stands in OCR's response to Lankford. If all the other guidance documents were able to pass a notice-and-comment period, why couldn't this one? If nothing else than to avoid the appearance of impropriety.

Alas, here we are, and the problems with OCR's response are numerous. Columnist George Will knocked the department for justifying the expansion of authority by yet again claiming the documents do not have the force of law. If one buys that argument, one would have to wonder why the other "guidance" documents — the ones that properly went through a notice-and-comment period — do have the force of law. Why are they called guidance documents at all if they are not simply guidance?

And if the 2011 letter doesn't carry the force of law, why are schools being investigated for not adhering to the new demands and being threatened with a loss of funding?

Indeed, William Creeley, vice president for legal and public advocacy at the Foundation for Individual Rights in Education, told the Chronicle of Higher Education that OCR's 2011 letter has been interpreted by colleges as having the force of law, and that the department "should rip it up and start again."

Will also mocked OCR for justifying its requirement of the "preponderance of evidence" standard (which means school administrators just have to be 50.01 percent convinced the accusation is true in order to brand someone a rapist) by saying that it's the standard many schools were already using. This is not a legal justification, which is what Lankford requested.

Legal scholar Hans Bader, himself a former lawyer for OCR, went even further in his criticism of the department's response to Lankford. OCR claimed in its response letter that because institutions must adhere to a preponderance of the evidence standard in civil litigation, the department is justified in forcing that standard on the students who attend the institution. Bader disagrees.

"A student's misconduct is generally not attributable to the school, especially since students 'are not agents of the school.' Indeed, even the conduct of an employee is often not attributable to his employer," Bader wrote. "As applied by the courts, federal sexual harassment law does not require institutions to be omnipotent in preventing or punishing harassment; omniscient as to who is guilty; or hostile to traditional presumptions of innocence. What it requires is taking actions 'reasonably calculated' to end the harassment and prevent a recurrence."

But OCR requires schools to be just that, and removes the "reasonable" standard. Bader cites several court cases that have shown that institutions aren't always held liable for not disciplining an employee when the facts of the case are murky. Institutions are credited with making a "good faith investigation" but can't be reasonably believed to be able to conduct the same investigation as the legal system.

Yet OCR has forced colleges and universities to pretend to conduct investigations parallel to those conducted by law enforcement or the courts. OCR has, however, removed many of the due process protections that make an actual investigation. It did, of course, keep the lower standard of proof used in civil courts, while removing the ability for the accused to discover evidence for his or her defense, have appropriate representation or even to face his or her accuser.

Bader also notes that using the lower preponderance standard in civil litigation "does not prevent the employer from giving the accused a strong presumption of innocence in its internal disciplinary proceedings." Yet OCR's guidance heavily incentivizes schools to drop the presumption to avoid an investigation from the department brought on by an aggrieved accuser.

Further, OCR wrote in its response to Lankford that sexual harassment alone is "not prohibited by Title IX as unlawful sexual harassment unless ... the educational institution fails to take prompt and effective steps reasonably calculated to eliminate the hostile environment, prevent its recurrence and, as appropriate, remedy its effects."

Bader wrote that this claim means that the preponderance standard would then refer to whether the school's actions were "reasonably calculated" to address the harassment and not whether harassment actually occurred. This doesn't justify the preponderance standard's use, as it would have been up to the schools to determine what is reasonably calculated.

This is not how the OCR has conducted itself, however, as it tells schools that the only way to comply with the "reasonably calculated" standard is to adopt the preponderance of evidence.

Attorney Stephen Henrick directed the Washington Examiner to a scholarly article he had written years earlier about OCR's overreach. In addition to the above, imprecise justifications for the preponderance of the evidence standard, OCR also cited past guidance documents as justification for the standard and the lack of a need to subject the 2011 letter to a notice-and-comment period.

But between 1996 and 2008, Henrick wrote in an email, OCR had a history of saying Title IX does not require schools to allow accusers to appeal decisions, yet in 2011, without a notice-and-comment period, that practice changed and OCR began requiring schools to provide appeals for both accusers and the accused. Intrepid readers will recognize that practice as eviscerating double jeopardy, as an accused student can then be subjected to another viewing. Indeed, accusers have used this appeal process to find a sympathetic ear to overturn a "not responsible" finding.

"If OCR is correct about asserting past practice to justify preponderance, it cannot simultaneously justify the new double jeopardy/complainant right of appeal because that runs contrary to past practice with no intervening notice-and-comment rulemaking," Henrick wrote.

Henrick also noted that OCR's 2011 letter reversed previous policy about harassment jurisdiction. Previously, Title IX only required schools to respond to discrimination that occurred in an "education program or activity." Henrick noted that the Supreme Court had previously held that schools had no obligation to respond to accusations of harassment that occurred outside of an educational program or activity.

OCR is now telling schools they must investigate an accusation "regardless of where the conduct occurred," which has brought accusations from non-students and accusations that occurred at off-campus housing not owned by the school.

Professor K.C. Johnson, who co-wrote a book about the Duke lacrosse rape hoax, also pointed out that OCR's response letter cited Davis v. Monroe County as justification for its harassment policies. But Davis, Johnson noted, required harassment to be "severe, pervasive and objectively offensive," while the 2011 OCR letter effectively removed the "pervasive" requirement.

OCR also claimed on page three of its response letter that it merely "reminded" schools of their obligations under Title IX to respond to accusations of sexual assault and sexual harassment. Johnson called this justification "absurd" because the 2011 letter "imposed new obligations" such as the preponderance standard, the "right" of accusers to appeal and the strong discouragement of cross-examination.

"How can a letter 'remind' schools of [obligations] that did not exist at the time of the letter?" Johnson asked.

Johnson also asked why, if the OCR's interpretation of what is "reasonable" to expect of schools is based on the Civil Rights Act, did no other administration use this interpretation in the 47 years between 1964 and 2011?

Former Education Department General Counsel Kent Talbert also told the Chronicle of Higher Education that OCR's response letter "glosses over" the department's requirement to adhere to the Administrative Procedures Act in issuing its 2011 guidance document.

OCR's response to Lankford doesn't answer the questions raised by the Oklahoma senator and provides vague and twisted justifications for the massive overreach wrought by the department. The 2011 letter had devastating consequences for hundreds of students across the country who were accused of sexual misconduct and not afforded a meaningful chance to defend themselves.

These students' universities abandoned them for fear of losing federal funding or receiving negative media following an unproven accusation. Defenders of OCR's overreach have said those who raise the question of due process in these cases are ignoring the lack of due process students have when accused of other campus misconduct.

The reason for the different treatment of the issues is simple: Media and administrative attention. Students accused of stealing a laptop don't face the same consequences as those accused of rape. Unless a student steals all the laptops in a dorm, he will likely not have his name splashed across the Internet and included in campus-wide emails or message boards. He will not be branded a "thief" for the rest of his life without the chance to defend himself. The school is also not being pressured to find and dismiss alleged thieves or risk losing federal funding.

It is for these reasons that OCR's guidance documents must be justified and why accused students need more due process than the department is allowing.

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