Education Dept. tries and fails to justify Title IX overreach

ASHE SCHOW: 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.

They didn’t want it to come up as a public issue before the 2012 election.
Related: Judge OKs Male Ex-Student’s Gender Bias Suit Vs. Brown U.

A judge says a former Brown University student can sue the Ivy league school over claims that he was wrongly accused of sexual misconduct and suspended for 2 ½ years.
The former student filed the lawsuit anonymously as “John Doe.” He says Brown’s disciplinary process is stacked against men accused of sexual misconduct.
The encounter for which he was suspended happened in 2014.
U.S. District Judge William Smith on Monday said gender discrimination, breach of contract and other claims can go forward.

Here’s the full opinion.

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Posted at 8:30 am by Glenn Reynolds