North Carolina Congresswoman Virginia Foxx questioned the Education Department's overreach when it comes to campus sexual assault during a hearing on Wednesday.
The congresswoman directed her question to Dr. John King, the acting secretary of the Education Department, who is currently going through the confirmation process to officially become head of the department.
"I'm very concerned about what's happening within your department's Office for Civil Rights and its impact on college campuses across the country," Foxx said. "For too long the OCR has gone around Congress by legislating a new mission and I'm deeply concerned about the office's legitimacy and effectiveness on these issues and the potential negative impact on students and institutions."
Foxx accused OCR of using its "Dear Colleague" letter process and an "implied threat" of investigations and loss of federal funding as a weapon against schools to require them to handle allegations of campus sexual assault. These threats from OCR have incentivized schools to abandon due process and the truth in order to prove to the department that they take sexual assault seriously.
Foxx said that anything that requires an expensive investigation by law should not "encroach" on Congress's constitutional duty to make laws.
"The office should follow the regulatory process that provides ample time for notice and comment," Foxx said. "There are significant issues that should be addressed by stakeholders before the department makes a unilateral decision on how to address certain issues, and again, individual circumstances matter greatly."
Foxx then asked King how many of the "Dear Colleague" letters issued over the past six years have gone through the proper notice-and-comment process (the one issued in 2011 that began the campus mess we see today did not). She also asked who is responsible for determining whether the letters should go through the notice-and-comment period and what King would do ensure the process is reformed to ensure that all stakeholders have an opportunity to comment.
Foxx also noted that OCR is "touting" how many investigations it has opened regarding claims that schools have not properly handled accusations of sexual assault. Foxx said that the number of investigations matters less than the actual justice of each individual case.
"Many are concerned that the office's current approach is counterproductive to reaching a just resolution, as well as being costly [and] inefficient," Foxx said.
She also asked how many investigations have been closed by OCR, how long it took to investigate the schools and whether all of that information is publicly published along with the findings of each investigation.
King responded by claiming that OCR's goal "is to ensure that the rights of students are protected and that our campuses — whether it's our K-12 schools or our higher education campuses — are safe and supportive environments for all students."
He added: "We think protecting students, both female and male students, against sexual assault has to be a part of how we ensure that our campuses are safe and supportive environments."
Notice how he does not mention protecting students from false accusations, further showing how the office does not seem to consider the possibility that accused students could be innocent.
King said that the "Dear Colleague" letters the office issues "do not have the force of law," a sentiment echoed by other officials in the department.
Foxx wasn't buying his response. "Is it not true though that the campuses feel they have the force of law and that there is the strong intimidation [and] tone to those letters that you're issuing?" the congresswoman asked.
King again tried to explain that "guidance" that threatens a loss of federal funding isn't actually intimidation. He claimed that the letters provided "clarity" to questions the department is asked and explain to schools how the department "interprets" existing law. He said that regulations follow the notice-and-comment period.
This is a similar response to the one the department gave to questions raised by Sen. James Lankford, R-Okla. Despite previous "Dear Colleague" letters going through the proper notice-and-comment period, the 2011 letter did not, and the department has since been claiming that it did not issue any new regulations.
But the 2011 letter broadened the definition of harassment, required schools to use a lower standard of proof when determining the credibility of sexual assault accusations and backed it all up with the threat of investigations and a loss of federal funding. It placed a significant burden on schools to use their funds to set up pseudo-court systems to try accused students (and find them responsible or else face an investigation).
Foxx requested written responses to her other questions by March 1, as her time to ask questions was limited.
It's good to have yet another legislator asking tough questions about how OCR has been allowed to create such a toxic environment on college campuses across the country. If only she had also been able to bring up the lack of due process rights afforded to accused students.
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