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Senator Demands Answers from Department of Education About Controversial Mandates
WASHINGTON, January 7, 2016鈥擨n a letter sent today expressing 鈥渃ontinued alarm鈥 about the Department of Education鈥檚 Office for Civil Rights (OCR), United States Senator James Lankford demands answers from Acting Secretary of Education John B. King about the agency鈥檚 authority to impose controversial new mandates on colleges and universities that strip students of rights without congressional approval or even a chance for public notice and comment.
Issued in 2010 and 2011 under the guise of 鈥淒ear Colleague鈥 letters, OCR鈥檚 mandates dictate how colleges and universities that accept federal funding鈥攙irtually every institution in the country鈥攎ust respond to and in order to comply with federal anti-discrimination statutes like Title IX. The Foundation for Individual Rights in Education (FIRE) and other civil liberties organizations have repeatedly criticized the letters for threatening freedom of expression and due process on campus by defining First Amendment-protected expression as 鈥渉arassment鈥 and mandating the use of the lowest standard of proof in sexual misconduct cases, among other requirements.
Senator Lankford notes that OCR鈥檚 letters 鈥渇ail to point to precise governing statutory or regulatory language that support their sweeping policy change.鈥
鈥淥CR has consistently avoided giving real answers to questions about its power to issue regulations outside the bounds of the law,鈥 said Robert Shibley, 果冻传媒app官方鈥檚 executive director. 鈥淚t cannot avoid accountability forever.鈥
Given the substantive mandates announced in OCR鈥檚 letters, Senator Lankford asks Acting Secretary King why the agency declined to submit them for public notice and comment, as required by the federal (APA).
鈥淧erhaps OCR sought to avoid notice-and-comment procedures, fearing that education officials and other interested groups would have voiced substantive objections to the letters鈥 policies if given an opportunity,鈥 Lankford writes. 鈥淚f so, this fear would have been well-placed: legal scholars and academics across the political spectrum have decried the Dear Colleague letters as offensive to First and Fourth Amendment protections鈥攑rotections that Title IX and its implementing regulations alone have never been said to imperil.鈥
FIRE has long voiced serious concerns about OCR鈥檚 avoidance of the APA. In 2013, FIREfiled a 鈥渇riend-of-the-court鈥 brief in federal district court arguing that OCR鈥檚 2011 鈥淒ear Colleague鈥 letter regarding campus sexual misconduct was invalid for its failure to adhere to the APA鈥檚 notice-and-comment requirements.
Senator Lankford is the latest senator to question OCR鈥檚 overreach. In 2014, Senator Lamar Alexander, Chairman of the Senate Committee on Health, Education, Labor & Pensions (HELP Committee), criticized OCR鈥檚 characterization of the 2011 鈥淒ear Colleague鈥 letter as 鈥済uidance鈥 when questioning Assistant Secretary for Civil Rights Catherine Lhamon, OCR鈥檚 chief, in a hearing. Senator Alexander levied similar criticisms in an exchange with Deputy Assistant Secretary Amy McIntosh in hearings held by the Senate Homeland Security and Governmental Affairs Committee鈥檚 Subcommittee on Regulatory Affairs and Federal Management last September. Lankford is the subcommittee鈥檚 chairman.
鈥淛ust last month, a public university administrator in Michigan claimed that Title IX and government regulations supersede the Constitution,鈥 said Shibley. 鈥淥CR has been acting as though he were right. It鈥檚 time for that to stop.鈥
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and rights of conscience at our nation鈥檚 colleges and universities. 果冻传媒app官方鈥檚 efforts to preserve liberty on campuses across America can be viewed at thefire.org.
CONTACT:
Katie Barrows, Communications Coordinator, 果冻传媒app官方: 215-717-3473; katie@thefire.org
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