The National Women’s Law Center and more than 80 other groups released a statement on Wednesday defending the U.S. Department of Education’s recent efforts to enforce how colleges should respond to complaints of sexual harassment and assault.
The open letter -- sent to the department and signed by 85 organizations representing victims, women and minority groups -- states that recent criticism of the department’s guidance is unwarranted. Republican senators, law professors and due process advocates have questioned the Education Department for months over the guidance, accusing the department’s Office for Civil Rights of illegal overreach. College officials have also expressed frustration with the department's guidance documents.
“Some advocacy organizations, law professors and legislators claim that the department violated the Administrative Procedure Act by issuing guidance documents without going through a formal notice-and-comment process,” the center wrote. “They also allege that grievance procedures outlined in the 2011 sexual violence guidance violate due process rights of students accused of sexual assault. Both of these arguments are without merit.”
In a letter sent to the secretary of education in January, Senator James Lankford, an Oklahoma Republican, wrote that, while the department's two Dear Colleague letters on harassment and sexual violence sent to institutions in 2010 and 2011 “purport to merely interpret statements of existing law,” the letters actually enacted sweeping regulatory changes without first going through the required notice-and-comment procedures required by the Administrative Procedure Act.
The 2011 guidance letter urged institutions to better investigate and adjudicate cases of campus sexual assault. It explained how the department interprets Title IX of the Education Amendments of 1972, and for the past five years it has been the guiding document for colleges hoping to avoid a federal civil rights investigation into how they handle complaints of sexual violence.
“These guidance documents and increased enforcement of Title IX by the Office for Civil Rights have spurred schools to address cultures that for too long have contributed to hostile environments, which deprive many students of equal educational opportunities,” the NWLC wrote.
But Lankford, who is chairman of the Senate Subcommittee on Regulatory Affairs and Federal Management, argues that the documents expanded the gender discrimination law’s scope, increasing the liability for institutions dealing with bullying, harassment and sexual violence and relaxing the burden of proof institutions are required to use when adjudicating cases of sexual assault. “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 -- policies that fail to accomplish our common regulatory goals of school safety and gender equality in education as required by Title IX,” Lankford wrote.
In particular, critics of the department have complained that the Dear Colleague letter endangers due process by forcing colleges to use the “preponderance of evidence” standard of proof when adjudicating claims of sexual assault. Though most colleges already used this standard prior to the letter, they were not required to do so, and many institutions, including Princeton and Harvard Universities, used until then a higher standard known as “clear and convincing.”
The department maintains it does not believe the guidance created new regulations and is therefore not subject to notice-and-comment rules. As preponderance of evidence is the standard already used by the Supreme Court in civil litigation involving discrimination, the department argues it makes sense to use the standard when enforcing a antidiscrimination law such as Title IX. In its letter this week, the NWLC agreed with the department, noting that the standard is used "in civil lawsuits between two private parties, including suits related to possibly criminal conduct such as tort actions for battery or murder/wrongful death."
A 2002 report published by the National Institute of Justice estimated that about 80 percent of institutions were using the preponderance of evidence prior to the department requiring it.
In May, 21 law professors signed an open letter asking that the department “clarify which directives it considers to be guidance documents vs. regulations.” The professors wrote that the Supreme Court -- in a 1979 case that set the standard for involuntary commitment for psychiatric treatment -- “recognized that a low standard of proof is inappropriate in situations involving damage to one's reputation.” To use the lower standard, they argued, deprives a student of his or her right to due process.
In its letter this week, the National Women’s Law Center called the criticism baseless, saying that the department’s guidance only clarifies what Title IX means when it states that colleges are required to create “grievance procedures providing for prompt and equitable resolution” of sexual assault complaints. In 2015, the U.S. Supreme Court reaffirmed that the Administrative Procedure Act “allows federal agencies to issue ‘interpretative rules’ that explain how the agency construes the laws and regulations it enforces,” the National Women's Law Center argues, meaning the department did not skirt any rules when creating the guidance.
“Nor does the 2011 sexual violence guidance deprive accused students of due process,” the NWLC wrote. “The department clarified that an equitable grievance procedure means that both the complainant and respondent bear the same burden of proof. In fact, by demanding equitable treatment of both the respondent and complainant, the department’s interpretation of Title IX provides students accused of sexual assault with procedural protections beyond those the Supreme Court has said are guaranteed under the U.S. Constitution.”
Among the letter's 85 signees were the American Association of University Women, the American Federation of Teachers, Campus Pride, End Rape on Campus, the Human Rights Campaign, the NAACP, the National Disabilities Rights Network and the Southern Poverty Law Center.